VILVARAJAH ; SKANDARAJAH ; SIVAKUMARAN ; NAVRATNASINGAM ; RASALINGAM v. THE UNITED KINGDOM
Doc ref: 13163/87;13164/87;13165/87;13447/87;13448/87 • ECHR ID: 001-45477
Document date: May 8, 1990
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Application Nos. 13163/87, 13164/87,
13165/87, 13447/87 and 13448/87
by Nadarajah VILVARAJAH, Vaithialingam SKANDARAJAH,
Saravamuthu SIVAKUMARAN, Vathanan NAVRATNASINGAM
and Vinnasithamby RASALINGAM
against the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 8 May 1990)
TABLE OF CONTENTS
Pages
I. INTRODUCTION
(paras. 1 - 17) ...................................... 1-3
A. The applications
(paras. 2 - 5) ................................... 1
B. The proceedings
(paras. 6 - 12) .................................. 1-2
C. The present Report
(paras. 13 - 17) ................................. 3
II. ESTABLISHMENT OF THE FACTS
(paras. 18 - 132) .................................... 4-33
A. The particular circumstances of the cases
(paras. 18 - 105) ................................ 4-25
a) The first applicant
(paras. 18 - 34) ............................. 4-10
b) The second applicant
(paras. 35 - 50) ............................. 10-13
c) The third applicant
(paras. 51 - 70) ............................. 13-16
d) The fourth applicant
(paras. 71 - 86) ............................. 16-20
e) The fifth applicant
(paras. 87 - 95) ............................. 20-22
f) The situation in Sri Lanka
(paras. 96 - 100) ............................ 22-24
g) The applicants' subsequent appeals
and their return to the United Kingdom
(paras. 101 - 105) ........................... 24-25
B. The relevant domestic law and practice
(paras. 106 - 132) ............................... 26-33
a) Appeal rights of an asylum seeker under
the Immigration Act 1971
(paras. 106 - 112) ........................... 26-28
b) Judicial review
(paras. 113 - 121) ........................... 28-31
c) The UKIAS referral service
(paras. 122 - 123) ........................... 31
d) Members of Parliament
(para. 124) .................................. 31
e) The decision making process in asylum cases
(paras. 125 - 130) ........................... 31-33
f) The law and practice in the case of refugees
to whom the 1951 UN Refugee Convention does
not apply
(paras. 131 - 132) ........................... 33
III. OPINION OF THE COMMISSION
(paras. 133 - 163) ................................... 34-42
A. Points at issue
(para. 133) ...................................... 34
B. As regards Article 3 of the Convention
(paras. 134 - 144) ............................... 34-37
Conclusion
(para. 144) ...................................... 37
C. As regards Article 13 of the Convention
(paras. 145 - 161) ............................... 37-42
Conclusion
(para. 161) ...................................... 42
D. Recapitulation
(paras. 162 - 163) ............................... 42
Partly dissenting opinion of MM. Trechsel, Ermacora,
Gözübüyük, Campinos, Mrs. Thune, Mr. Rozakis and
Mrs. Liddy, as regards the issue under Article 3
of the Convention ............................................ 43
Further dissenting opinion of Mrs. Liddy as regards
the issue under Article 13 of the Convention ................. 44
APPENDIX I : History of the proceedings
before the Commission .......................... 45-46
APPENDIX II: Decision of the Commission on the
admissibility of the applications .............. 47-75
I. INTRODUCTION
1. The following is an outline of the cases as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The applications
2. The applications are brought by five citizens of Sri Lanka, of
Tamil ethnic origin.
3. The first applicant, Mr. Nadarajah Vilvarajah, was born in
1960. At the time of lodging his application he was detained at H.M.
Detention Centre Latchmere, England, pending his removal to Sri
Lanka. The second applicant, Mr. Vaithialingam Skandarajah, was born
in 1958 and was detained in the same place as the first applicant
awaiting removal when he lodged his application. The third applicant,
Mr. Saravamuthu Sivakumaran, was born in 1966. At the time of lodging
his application he was temporarily resident in Morden, Surrey, whilst
awaiting his removal to Sri Lanka. The fourth applicant, Mr. Vathanan
Navratnasingam, was born in 1970. When he lodged his application he
was temporarily resident in Ilford, Essex, pending removal. The fifth
applicant, Mr. Vinnasithamby Rasalingam, was born in 1961 and was
temporarily resident in Southall, Middlesex, whilst awaiting removal
to Sri Lanka when he lodged his application to the Commission.
4. The applicants were represented before the Commission by Mr.
D. Burgess and Mr. C. Randall, both solicitors with Messrs.
Winstanley-Burgess, solicitors, London, and by Mr. N. Blake, Counsel.
The respondent Government were represented by their Agent, Mr. M.
Wood, succeeded by Mr. N. Parker, both of the Foreign and Commonwealth
Office, Mr. M. Baker, Counsel, Mr. J. Eadie, Counsel, and Mr. D.
Seymour and Mr. N. Sanderson, both of the Home Office.
5. The applications concern the refusal of the applicants'
requests for asylum in the United Kingdom and their removal to Sri
Lanka where they alleged that, as young male Tamils, they had
reasonable grounds to fear persecution, torture, arbitrary execution,
or inhuman or degrading treatment. The cases also concern the
efficacy of remedies in the United Kingdom to determine the
reasonableness of such claims. They raise issues under Articles 3
and 13 of the Convention.
B. The proceedings
6. The first three applications were introduced on 26 August 1987
and registered on the same day. They were presented with another
application by a Tamil, No. 13162/87. The latter had requested the
Commission to intercede to stay his removal from the United Kingdom,
pursuant to Rule 36 of the Commission's Rules of Procedure. This was
refused by the Acting President of the Commission on 26 August 1987,
but that same day the Secretary to the Commission gave notice of all
four applications to the respondent Government, pursuant to Rule 41 of
the Rules of Procedure. (Application No. 13162/87 was declared
inadmissible on 9 November 1987.)
7. Following the House of Lords' judgment of 16 December 1987,
refusing judicial review of the Secretary of State's decision to
remove the applicants, a further Rule 36 request concerning a stay of
removal was made by the three applicants' representatives. At the
same time the fourth and fifth applications were introduced with the
same Rule 36 request. The Commission decided on 18 December 1987 not
to make any Rule 36 indication in the circumstances of the five cases
as presented to it.
8. After a preliminary examination of the cases by the
Rapporteur, the Commission considered the admissibility of the
applications on 13 April 1988 and decided to request the parties'
written observations on the admissibility and merits of the
applications pursuant to Rule 42 para. 2(b) of its Rules of Procedure.
9. The Government lodged their observations on 31 August 1988,
after an extension of the time-limit fixed for their submission. The
applicants' representatives submitted observations in reply on
24 November 1988. Legal aid had been granted to the second and fourth
applicants by the President of the Commission on 11 November 1988.
10. On 10 March 1989 the Commission adjourned its examination of
the cases pending the decision of the adjudicator which was imminent
(13 March 1989). On 11 April 1989 the Commission joined the
applications and decided to invite the parties to an oral hearing on
admissibility and merits.
11. The hearing was held on 7 July 1989 with the parties
represented as above (para. 4). Following the hearing and
deliberations, the Commission declared the applications admissible.
On 10 August 1989 the parties were sent the text of the Commission's
decision on admissibility and they were invited to submit further
written observations on the merits of the cases. The Government
submitted their observations on 6 October 1989, followed by the
applicants on 11 October 1989.
12. After declaring the cases 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' reactions the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
G. BATLINER
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
M. C.L. ROZAKIS
Mrs. J. LIDDY
14. The text of this Report was adopted by the Commission on
8 May 1990 and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
15. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
16. 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 forms Appendix II.
17. 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 cases
a) The first applicant
18. Before going to the United Kingdom the first applicant was an
assistant in his father's shop at Paranthon, Kilinochchi District,
Northern Province. Kilinochchi is near Vavuniya, bordering on the
Sinhala area. The first applicant's district was under constant
attack by the armed forces, which had established a camp there. On
several occasions the army had attacked, killed and destroyed people
and property. The first applicant's cousin, whilst working in the
fields, was killed, together with five other men, by the army in 1986,
and the family's shop was raided and damaged on 28 March 1987.
19. The first applicant stated that he was detained twice by naval
forces in March and April 1986 and assaulted. On this first occasion
he was driving a mini-bus, which broke down close to a naval base. A
naval patrol detained the first applicant and his passengers for 10
hours. He claims to have been heavily beaten. On the second occasion,
whilst driving the mini-bus, he was stopped by a naval patrol and
detained for 24 hours. They accompanied the bus back to his home town
of Karainagar where they opened fire at random on the people there.
Fire was also exchanged between a Tamil separatist group, the
Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), and navy
personnel, who used the bus passengers as shields.
20. Young men like the first applicant were arrested by the army
and disappeared. Others were tortured and can no longer lead useful
lives. Many innocent people were killed by the State's armed forces.
The State air force indiscriminately bombed the Tamil areas,
helicopters shooting at those fleeing the air raids.
21. During a major Sri Lankan army offensive to retake the
Northern Province from the LTTE, the first applicant's family lost
their shop and belongings and were at serious risk of losing their
lives, particularly the first applicant, a young male Tamil.
Accordingly his father sent him to Colombo in May 1987 where he
arranged with an agent for the first applicant to be sent to London.
The first applicant travelled on his own passport to Madras on 6 June
1987. On 10 June 1987 he travelled with a Malaysian passport
(provided by an agent in Madras) to London via Bombay. He arrived in
London on 11 June 1987 and sought entry to the United Kingdom as a
visitor for two days, in transit to Montreal, Canada, where he said he
was going for a holiday. He was detained pending inquiries. As he
later admitted, he was not the rightful holder of the Malaysian
passport in which his photograph had been substituted for that of its
owner. The first applicant was, therefore, refused leave to enter
under paragraph 3 of the Statement of Changes in Immigration Rules
which requires that persons seeking admission must produce a valid
passport or other identity/nationality document. On 12 June 1987 the
first applicant requested asylum in the United Kingdom under the
United Nations Convention of 1951 relating to the Status of Refugees,
as amended by the Protocol of 1967 (hereafter referred to as the 1951
Refugee Convention).
22. On 19 June 1987 the first applicant was interviewed by
immigration officers in the Tamil language with the assistance of an
interpreter. He stated that it was unsafe for him to remain in Sri
Lanka due to the Government's operations around Jaffna for the reasons
outlined above. The solicitors previously representing the first
applicant made no representations to the Home Office on his behalf.
23. In accordance with paragraph 73 of the Rules, the first
applicant's asylum request was referred to the Refugee Section of the
Immigration and Nationality Department of the Home Office. However
they concluded that the applicant had not shown that he had a
well-founded fear of persecution for the purposes of the 1951 Refugee
Convention. This conclusion was endorsed by Home Office Ministers
and, on 20 August 1987 (a Thursday), the Secretary of State for the
Home Department refused the first applicant's request in the following
terms:
"You have applied for asylum in the United Kingdom on the
grounds that you hold a well-founded fear of persecution
in Sri Lanka for reason of race, religion, nationality,
membership of a social group or political opinion. You
said it was unsafe for you to remain in Sri Lanka due
to Government operations around Jaffna. You also said
you had been detained on two occasions in March and April
1986 for 10 hours and 24 hours respectively and that on
28 March 1987 the army raided your family business. But
it is noted that the incidents you have related were
random and part of the army's general activities directed
at discovering and dealing with Tamil extremists and that
they do not constitute evidence of persecution.
You have produced no other evidence in support of your
application for asylum.
The Secretary of State has considered the individual
circumstances of your case and in addition the situation
in Sri Lanka and has concluded that you have not
established a well-founded fear of persecution in Sri Lanka.
Accordingly your application for asylum is refused. Since
you do not otherwise qualify to enter the United Kingdom,
the Immigration Service has been instructed to arrange for
your removal to Sri Lanka to which country you are
returnable under para. 10 of schedule 2 Immigration Act 1971."
24. Since the first applicant did not otherwise qualify for leave
to enter the United Kingdom under the Immigration Rules, arrangements
for his removal to Sri Lanka were made for 22 August 1987 (the
Saturday). He instructed his present representatives, who are
experienced in such cases, to apply to the High Court for judicial
review of the Secretary of State's decision. The solicitors had
considerable difficulty obtaining instructions, given the delay which
occurred in procuring the necessary permission from the Governor of HM
Remand Centre, Latchmere, where the first applicant was detained, the
latter's ignorance of English and the urgency of his situation. They
worked through Thursday night to prepare the necessary paper work,
inevitably sketchy, for the Friday. The case before the High Court
was delayed so that Treasury Counsel could attend. (Although such
cases are usually argued initially by an applicant without the Home
Office representative, Treasury Counsel, present, i.e. ex parte, the
Home Office nowadays seeks to submit argument from the outset.) The
single judge refused the application. A similar application to a
single judge in the Court of Appeal was also unsuccessful. By this
time it was too late in the afternoon to make up a full Court of
Appeal to hear further appeal arguments. The Home Office refused to
defer the first applicant's removal, scheduled the next day, to enable
him to go before a full Court of Appeal on the Monday. The first
applicant's solicitors again worked through the night and submitted an
application to the Duty Judge on Saturday morning at his home. They
alleged that the Home Office's refusal to delay removal unreasonably
denied the first applicant's right to renew his application to the
Court of Appeal. The Judge accepted the argument and issued an
injunction which was served by the solicitors at Heathrow Airport in
the afternoon, thereby preventing removal. On 26 August 1987 the
Court of Appeal granted the first applicant leave to apply for
judicial review of the Secretary of State's decision.
25. On 24 September 1987 Mr. Justice McCowan dismissed the
application, but on 12 October 1987 the Court of Appeal quashed the
refusal decision. The Secretary of State successfully appealed to the
House of Lords, which gave judgment on 16 December 1987. The case
before the House of Lords concerned the proper interpretation of
Article 1A(2) of the 1951 Refugee Convention and the definition of a
refugee as being a person who has "a well-founded fear of being
persecuted" on various grounds. The House of Lords held that the
requirement that an applicant's fear of persecution should be
well-founded means that there has to be demonstrated, on the basis of
objective fact, a reasonable degree of likelihood, or a real and
substantial risk, that he will be persecuted if returned to his own
country.
26. The House of Lords was satisfied that the Secretary of State
had acted reasonably and objectively in assessing the Tamil situation
in Sri Lanka and in assessing whether there existed for the first
applicant any real risk of persecution for a reason specified in the
1951 Refugee Convention:
Lord Keith of Kinkel: "The terms of
of State's> decision letters make it clear that he has
proceeded on the basis of the objective situation in
Sri Lanka as understood by him. The affidavit of
Mr. Potts, an official of the Home Office, indicates
that the Secretary of State took into account reports
of the refugee unit of his department compiled from
sources such as press articles, journals and Amnesty
International publications, and also information
supplied to him by the Foreign Office and as a result
of recent visits to Sri Lanka by ministers. It is
well known that for a considerable time Sri Lanka,
or at least certain parts of that country, have been
in a serious state of civil disorder, amounting at
times to civil war. The authorities have taken steps
to suppress the disorders and to locate and detain those
responsible for them. These steps, together with the
activities of the subversives, have naturally resulted
in painful and distressing experiences for many persons
innocently caught up in the troubles. As the troubles
have occurred principally in areas inhabited by Tamils,
these are the people who have suffered most. The
Secretary of State has in his decision letters expressed
the view that army activities aimed at discovering and
dealing with Tamil extremists do not constitute evidence
of persecution of Tamils as such. This was not disputed
by counsel for any of the applicants, nor was it seriously
maintained that any sub-group of Tamils, such as young
males in the north of the country, were being subjected
to persecution for any Convention reason. It appears
that the Secretary of State, while taking the view that
neither Tamils generally nor any group of Tamils were
being subjected to such persecution, also considered
whether any individual applicant had been so subjected
and decided that none of them had been. Consideration
of what had happened in the past was material for the
purpose of assessing the prospects for the future.
It was argued that the Secretary of State's decision
letters did not clearly indicate that he had applied
the 'real and substantial risk' test, but left it open
that he might have applied a 'more likely than not'
test. But there is clearly to be gathered from what
the Secretary of State has said that in his judgment
there existed no real risk of persecution for a
Convention reason."
Lord Templeman: "In order for a 'fear' of 'persecution'
to be 'well-founded' there must exist a danger that if
the claimant for refugee status is returned to his
country of origin he will meet with persecution. The
Convention does not enable the claimant to decide
whether the danger of persecution exists. The
Convention allows that decision to be taken by the
country in which the claimant seeks asylum. Under
the Act of 1971 applications for leave
to enter the United Kingdom, including applications
based on a claim to refugee status, are determined by the
immigration authorities constituted by the Act. By the
Rules made under the Act the appropriate authority to
determine whether a claimant is a refugee is the
Secretary of State. The task of the Secretary of State
in the present proceedings was and is to determine in
the case of each appellant whether the appellant will
be in danger of persecution if he is sent back to Sri
Lanka. Danger from persecution is obviously a matter
of degree and judgment. The Secretary of State accepts
that an appellant who fears persecution is entitled to
asylum in this country unless the Secretary of State is
satisfied that there is no real and substantial danger
of persecution. The Secretary of State has concluded
that there is no real and substantial danger of
persecution."
Lord Goff of Chieveley: "First, I respectfully agree with
my noble and learned friend Lord Keith, for the reasons
given by him, that the requirement that the applicant's
fear must be well founded means no more than that there
has to be demonstrated a reasonable degree of likelihood
of his persecution for a Convention reason; indeed, I
understand the submission of counsel for the Secretary
of State, that there must be a real and substantial risk
of persecution, to be consistent with that interpretation.
Second, it is not to be forgotten that the Secretary of
State has in any event an overriding discretion to depart
from the immigration rules and admit an applicant for
refugee status if he considers it just to do so. Third,
I am with all respect unable to agree with the view expressed
by Sir John Donaldson MR that different tests are applicable
under Art. 1 and Art. 33 of the Convention (see [1987] WLR
1047 at 1051). Article 33 (1) provides as follows:
'No Contracting State shall expel or return ('refouler')
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.'
Sir John Donaldson MR suggested that, even if the Secretary
of State decides that an applicant is a refugee as defined
in Art. 1, nevertheless he has then to decide whether
Art. 33, which involves an objective test, prohibits
a return of the applicant to the relevant country. I am
unable to accept this approach. It is, I consider, plain,
as indeed was reinforced in argument by counsel for the
(United Nations High Commissioner for Refugees) with
reference to the travaux préparatoires, that the
non-refoulement provision in Art. 33 was intended to apply
to all persons determined to be refugees under Art. 1
of the Convention. I cannot help feeling, however, that
the consistency between Arts. 1 and 33 can be more
easily accepted if the interpretation of well-founded fear
in Art. 1 (A)(2) espoused by the Secretary of State is
adopted rather than that contended for by the High Commissioner."
27. After the judgment in the House of Lords had been handed down
on 16 December 1987 the first applicant's solicitors wrote to the Home
Office later that day indicating that they would be making further
representations and that they would be applying to the Commission
seeking an indication under Rule 36 of its Rules of Procedure. They
also sought the Home Office's confirmation that no steps would be
taken against their client for 7 days, which confirmation was given.
Representations were also made by the British Refugee Council and the
United Kingdom Immigrants Advisory Service, even though neither body
was responsible for the case work concerned. Representations were
also made by a Member of Parliament at the request of the Tamil Action
Committee U.K. The Secretary of State took the view that asylum
candidates who failed to qualify for refugee status should be returned
to Sri Lanka unless there were strong compassionate circumstances in
any particular case. In the applicant's case he did not consider that
such compassionate circumstances existed.
28. The first applicant was returned to Sri Lanka on 10 February
1988. He was escorted by police officers, the Sri Lankan authorities
having been forewarned. His name was published in Sri Lankan
newspapers. He was interviewed briefly on arrival by Sri Lankan
immigration authorities at the airport. A member of the British High
Commission was also present at the airport on arrival. The removal
expenses were paid by the Home Office and the first applicant had
funds in excess of £100.
29. After the first applicant's return to Sri Lanka an appeal was
lodged in the United Kingdom by his solicitors on his behalf against
the refusal of asylum. They went to Colombo to interview and take
statements from him. He confirmed that thanks to the publicity
surrounding his case and the presence of the member of the British
High Commission he was given little trouble at the airport. He stated
that he was questioned for about three hours by the Sri Lankan police
as to whether he had connections with Tamil separatist groups like the
People's Liberation Organisation of Tamil Eelam (PLOTE) and the LTTE,
which he denied. The police noted his address and took his
fingerprints.
30. The first applicant stated that he returned to his native
village to avoid the Sri Lankan authorities and denunciation in
Colombo by the PLOTE with whom the applicant had been associated, in
fact, but who were now cooperating with the Indian Peace Keeping
Forces (IPKF) in identifying their former members and alleged LTTE
members.
31. He also said that two weeks after his return he was denounced
to the IPKF and summoned to the local Chief Officer's Office. He was
accused of connections with the LTTE and became frightened. However he
was allowed to return home after questioning. The first applicant
found the security situation arbitrary and he was afraid to leave his
home. On a visit to Jaffna in April 1988 he was rounded up with other
Tamils and kept 10 hours by the IPKF. They were paraded in front of
masked men who identified certain people. The first applicant was
afraid they would make an error, but he was not detained. People so
detained have been beaten and tortured and on release have
"disappeared". Certain other Tamil groups were cooperating with the
IPKF, some for vengeful reasons. According to the first applicant,
the IPKF were unpopular, although many Tamils felt marginally safer
with them than with the prospect of the Sri Lankan army returning.
32. The first applicant recounted other incidents which lead him
to fear IPKF ill-treatment because of his earlier involvement with the
PLOTE and the IPKF's arbitrary manner of dealing with Tamils. When he
went to Colombo to see his solicitors he had to go through about 13
frightening IPKF checkpoints and three other Sri Lankan checkpoints,
doubling the length of the normal 8 hours journey.
33. He submitted evidence to the Commission from, inter alia, an
expert in Sri Lankan affairs, Professor J.G. Manor, who described the
situation in Sri Lanka in August 1987 as unstable despite the peace
Accord signed between Sri Lanka and India in late July 1987. In
December 1987 a special representative of the World Council of
Churches, Mr. G. Jackson, had found after visiting Sri Lanka for a
month that the Tamil areas remained inaccessible, subject to guerilla
attack, with a shortage of food, accommodation, transport and medical
care. He had however noticed a slow easing of conditions in the north
of the island since the beginning of November 1987. Amnesty
International (17 December 1987) and the United Nations High
Commissioner for Refugees (17 December 1987) recommended that Tamil
asylum seekers in the United Kingdom should not be removed back to Sri
Lanka because of continued instability and fighting in northern and
eastern Sri Lanka between Tamil militants and the IPKF.
34. This evidence and all other relevant material was put before
the adjudicator, the first instance of immigration appeal in the
United Kingdom. On 13 March 1989 he found in the first applicant's
favour and the latter was subsequently allowed to return to the United
Kingdom on 4 October 1989 (paras. 101-105 below). He has been granted
exceptional leave to remain for 12 months.
b) The second applicant
35. The second applicant comes from Jaffna in the north of Sri
Lanka, an area which had been controlled by the LTTE when he was
living there. He says that in 1985 the Sri Lankan army staged a reign
of terror. People could not go out in the street. Young men were
arrested without reason; some were tortured or "disappeared" or were
shot on sight. Everyone was suspected of being a Tamil separatist and
lived in fear. When the army conducted searches the second applicant
and his family hid in trenches. His house was searched regularly until
1985. It was destroyed in 1986. The family had to go for days without
food and starved because it was dangerous to go out to fetch it. The
army's daily bombing of the Tamil area was indiscriminate, without
concern for human life. It was the bombing and damage to his home and
business on 24 April 1987 which made him decide to leave. He claims
to have been questioned by the police about the LTTE, although he has
never belonged to them.
36. The second applicant left Jaffna having lost all his
possessions apart from 150,000 rupees. He went to Colombo where he
was arrested by the police on 2 May 1987 at his uncle's home. He
states that he was held for 20 hours and tortured, resulting in injury
and scarring to his right leg. He claims that he was deliberately
injured with barbed wire and that he was released in a dazed and dying
state.
37. An agent, instructed by the second applicant's father,
arranged for his flight to an unknown destination. On 6 June 1987 he
travelled by a scheduled service of Indian Airways from Colombo to
Madras on his own Sri Lankan passport issued in Colombo in December
1986. On 10 June 1987 he then travelled with a Malaysian passport via
Bombay to London. There he sought entry as a visitor for two days in
transit for Montreal, Canada. The second applicant was travelling on
a Malaysian passport in the name of Srirengan Rengasamy. As he later
admitted, he was not the rightful holder of the document, his
photograph having been substituted for the original.
38. He stated that his own Sri Lankan passport had been obtained
through normal channels, but it had been retained by his travel agent
in Madras. The Malaysian passport had been obtained from the same
agent in Madras at a cost of 100,000 rupees (which had been paid for
before leaving Colombo) and which included the cost of the airline
ticket.
39. The second applicant was refused leave to enter by the United
Kingdom immigration authorities on 12 June 1987 under paragraph 3 of
the Statement of Changes in Immigration Rules, which requires the
production of a valid identity/nationality document. Arrangements
were made for his removal back to Sri Lanka on a 22.00 h flight.
However, before the flight he revealed his Sri Lankan nationality and
requested asylum. His removal was, therefore, postponed.
40. On 17 June 1987 he was interviewed about his asylum
application in the Tamil language with the assistance of an
interpreter. During the three hour interview, the second applicant
explained his fear of persecution if returned to Sri Lanka as outlined
above.
41. In accordance with paragraph 73 of the aforementioned
Immigration Rules, the matter was referred to the Refugee Section of
the Home Office. They concluded that the second applicant had not
demonstrated that he had a well-founded fear of persecution for the
purposes of the 1951 Refugee Convention. Details of the case were
referred to Ministers in the Home Office, who reached a similar
conclusion. Accordingly, on 20 August 1987 a refusal notice was
served on the second applicant, who had remained in detention pending
consideration of his case.
42. The Secretary of State's refusal of the second applicant's
asylum request was in the following terms:
"You have applied for asylum in the United Kingdom on the
grounds that you hold a well-founded fear of persecution
in Sri Lanka for reason of race, religion, nationality,
membership of a social group or political opinion. The
Secretary of State has considered your application. You
said it was unsafe for you to return to Sri Lanka because
of the Government operation around Jaffna. You stated that
your house and business premises had been destroyed by
Government shelling. You also said that you had been
detained for 20 hours in May 1987 and had been assaulted.
But it appears that the destruction of your house and
business resulted from a random shelling arising from
civil disorder and it appears that your arrest and brief
detention were part of the army's general activities
directed at discovering and dealing with Tamil extremists.
The Secretary of State has considered the individual
circumstances of your case and in addition the situation
in Sri Lanka and has concluded that you have not
established a well-founded fear of persecution in Sri Lanka.
Accordingly your application for asylum is refused. Since
you do not otherwise qualify to enter the United Kingdom,
the Immigration Service has been instructed to arrange
for your removal to Sri Lanka to which country you are
returnable under para. 10 of schedule 2 Immigration Act 1971."
43. Arrangements for his removal to Sri Lanka were made for
22 August 1987.
44. The subsequent events in this case up to the second
applicant's removal to Sri Lanka were identical to those of the first
applicant (see paras. 24-27 above).
45. The second applicant was returned to Sri Lanka on 10 February
1988. He was escorted by police officers, the Sri Lankan authorities
having been forewarned. His name was published in Sri Lankan
newspapers. He was first interviewed briefly on arrival by Sri Lankan
immigration authorities at the airport. A member of the British High
Commission was also present at the airport on arrival. The removal
expenses were paid by the Home Office and the second applicant had
funds in excess of £100. He was then interviewed by the Sri Lankan
police for several hours and fingerprinted. He laid low in Colombo at
his uncle's house for about a month until it was safe to travel to
Jaffna.
46. After the second applicant's return to Sri Lanka an appeal was
lodged in the United Kingdom by his solicitors on his behalf against
the refusal of asylum. They went to Colombo to interview and take
statements from him. He told his solicitors that on 10 March 1988 he
was travelling to Jaffna by bicycle from his home when he was stopped
by an IPKF check. Tamil men and boys were lined up for identification
by two masked men, one of whom picked out the applicant. He was taken
with about 10 others to an IPKF camp in a Jaffna house where he was
beaten for about three hours. Part of the time he was clubbed with
sand filled PVC pipes. At the same time questions were shouted at him
about the LTTE, of which the applicant denied any knowledge. He was
kept in a small room without bedding or sanitary facilities, squashed
up with six other detainees who were receiving similar ill-treatment.
Some of these people were treated more harshly than the applicant by
being beaten hung upside down. The second applicant was beaten
intensely three more times over the next seven days for periods of
about half an hour.
47. He was detained for some two and a half months until 24 May
1988, the same men questioning him. He lost 20-30 lbs in weight, had
bad headaches and was very frightened. The Indian soldiers constantly
told him that if he did not talk they would keep him locked up
forever. The detainees were given rice, dahl and chapatis for food
and insufficient water. They therefore became dehydrated and
constipated. They were filmed and apparently later shown on
television as surrendered LTTE men. The second applicant was rescued
by his family by bribing the local IPKF commander with gold, even
though his family could not really afford to do so. He still has
nightmares about this period.
48. On release he was told to report daily. Given his experience,
he fled to Colombo. On the way there he had to pass 15 IPKF
checkpoints and several Sri Lankan army checkpoints. Everyone was
searched at the checkpoints but no one was arrested.
49. The second applicant stated that life at that time in Colombo
was very tense for Tamils. A few weeks before the interview with his
solicitors 25 boys were arrested for not having good enough reason for
being in the south. It was nerve-racking for the second applicant
having already been beaten and tortured by the Sri Lankan army in
Colombo. There was a constant danger of arbitrary arrest and
detention, particularly with denunciation by informers. However the
second applicant felt safer in Colombo than in Jaffna. To justify his
stay in Colombo he registered as a student.
50. The second applicant's appeal in the United Kingdom was
successful. An adjudicator upheld his claims on 13 March 1989. The
second applicant was subsequently allowed to return to the United
Kingdom on 4 October 1989, where he was granted exceptional leave to
remain for 12 months (paras. 101-105 below).
c) The third applicant
51. The third applicant comes from Point Pedro, Sri Lanka, where
his family are living. His father is a fisherman. He is the eldest
son. He was studying for his 'O' level examinations at Khartly
College in Point Pedro until the end of 1985 and he then stayed at
home.
52. In April 1984 the third applicant witnessed the killing of his
brother by navy personnel. The brother was a fisherman and was
fishing in a boat with a friend within the one mile limit off the
coast at Point Pedro. Navy personnel came by in a boat and shot and
killed both of them without warning or reason.
53. In March 1984 security forces came to the area and rounded up
male Tamils, including the third applicant. They were detained for
one day and assaulted with rifle butts and sticks. Their names and
family details were noted. Some of them were taken away by the army.
54. In June 1984 the security forces came to Point Pedro and again
rounded up the male Tamils, including the third applicant. About 300
people were rounded up. Part of the time they were detained outside,
part of the time in a building. They were assaulted. The security
forces took away 15 people and shot and killed them the same day. The
bodies were burned. Other people were sent to an army camp.
55. In September 1984 the situation repeated itself with male
Tamils being rounded up and detained for one day. The third applicant
was again detained. About 20 people were taken away, shot and killed.
The bodies were burned on the spot.
56. After these incidents, whenever they saw the security forces
approaching, the men would run away and go into hiding.
57. Point Pedro has been subject regularly to air bombardment and
shelling from the army camp. The third applicant's family house was
damaged during air bombardment in October 1985 and the family had to
move to another house in the area.
58. The third applicant states that he was in the LTTE from late
1984 until he left Sri Lanka. He did some military training and was a
sentry for the camp. He also carried communications for them. He
claims, however, never to have been involved in any violence or
terrorist activities.
59. His father decided that the third applicant should leave Sri
Lanka as he feared for his son's safety as a young, male Tamil. His
father made arrangements through a Tamil agent in Point Pedro for his
son to leave the country. The third applicant travelled to Colombo on
28 November 1986 and stayed with the agent until 11 December 1986.
The agent obtained a passport for him. The third applicant travelled
to the United Kingdom via India, Nepal and Dhaka.
60. On the way to Colombo airport, the minibus in which he was
travelling was stopped at an army checkpoint just before the airport.
The third applicant and the other passengers were accused of going for
training with militants in India - they were in possession of tickets
for India. They were taken to an office and held for 3 hours and
questioned. They were also fingerprinted.
61. The third applicant was one of a group of some 64 Tamils who
arrived at Heathrow Airport, London, on 13 February 1987 and claimed
asylum. He originally stated that he was in transit to Norway. The
64 Tamils were all detained pending the proceedings.
62. The third applicant was interviewed in the Tamil language with
the aid of an interpreter. As to conditions in Sri Lanka he described
the events outlined above. At that stage he averred that he was not
involved with the LTTE. (He did not make this claim to the British
authorities until September 1987, because, he states, he feared it
would have an adverse effect on his asylum application.)
63. Pursuant to paragraph 73 of the Statement of Changes in
Immigration Rules, the matter was referred to the Refugee Section of
the Home Office. They concluded that the third applicant had not
established a well-founded fear of persecution for the purposes of the
1951 Refugee Convention and his application was refused on 16 February
1987. However, an application for leave to apply for judicial review
was made to the Divisional Court and granted on 24 February. On 2
March the Home Office informed the third applicant's solicitors that a
fresh decision would be taken on the asylum claim.
64. Representations from the United Kingdom Immigrants' Advisory
Service were received and the third applicant was re-interviewed about
his asylum claim on 14 April 1987.
65. The application for asylum was reconsidered in the Refugee
Section but they again concluded that the third applicant had not
demonstrated that he had a well-founded fear of persecution for the
purposes of the 1951 Refugee Convention. Details of the case were
referred to Ministers, who reached a similar conclusion. Accordingly,
on 20 August 1987 a refusal letter was served on the third applicant,
which read as follows:
"You have applied for asylum in the United Kingdom on the
grounds that you hold a well-founded fear of persecution
in Sri Lanka for reason of race, religion, nationality,
membership of a social group or political opinion. The
Secretary of State has further considered your application.
You said it was too dangerous to stay in Sri Lanka. People
were being arrested indiscriminately and killed by the
security forces. You also said that you had been detained
on three occasions between 1984 and 1985 and that you had
been detained for three days after being arrested with your
travelling companions on the way to Colombo. Lastly you
said your brother, Kamarajah, had been shot by the navy in
1984. But it is noted that the experiences to which you
refer were the result of civil disorder in Sri Lanka rather
than persecution within the terms of the United Nations
Convention Relating to the Status of Refugees and that
your arrests were part of the army's general activities
directed at discovering and dealing with Tamil extremists
and that on each occasion you were released without charge
after a short period. It is further noted that your
brother was shot dead by the navy when he failed to obey
a lawful order. The Secretary of State has considered
the individual circumstances of your case and in addition
the situation in Sri Lanka and has concluded that you
have not established a well-founded fear of persecution
in Sri Lanka. Accordingly your application for asylum
is refused. Since you do not otherwise qualify to enter
the United Kingdom, the Immigration Service has been
instructed to arrange for your removal to Sri Lanka to
which country you are returnable under para. 10 of
schedule 2 Immigration Act 1971."
66. Arrangements for his removal to Sri Lanka were made for
22 August 1987.
67. The subsequent events in this case up to the third applicant's
removal to Sri Lanka were identical to those of the first applicant
(see paras. 24-27 above).
68. The third applicant was removed to Sri Lanka on 12 February
1988. He was escorted by police officers, the Sri Lankan authorities
having been forewarned. His name was published in Sri Lankan
newspapers. A member of the British High Commission was present at
the airport on arrival. The removal expenses were paid by the Home
Office and the third applicant had funds in excess of £100.
69. On returning to Sri Lanka the third applicant was apparently
detained by the IPKF from 2 April until 3 October 1988 and from
29 November until 30 December 1988. He then spent some time out of
that country. Although his whereabouts were undisclosed for some
time, he kept in contact with his solicitors, who lodged an appeal in
the United Kingdom on his behalf against the refusal of asylum. This
appeal was successful. An adjudicator upheld his claims on 13 March
1989. The third applicant was subsequently allowed to return to the
United Kingdom on 4 October 1989, where he was granted exceptional
leave to remain for 12 months (paras. 101-105 below).
70. On 9 January 1990 the third applicant's representatives
submitted a statement he had made to them about his treatment by the
IPKF in Sri Lanka on his return there as of 13 February 1988: He
alleges that on his return he was held by the Sri Lankan Police
(Criminal Investigation Division) for a day and treated like a
criminal whilst being interrogated about his reasons for having gone
to the United Kingdom. He then stayed with his parents for a few
weeks. Whilst passing through a check point he was identified by a
masked man as having being involved with the LTTE and detained by the
IPKF. He was interrogated about the LTTE and tortured every 4 or 5
days. He was stripped and beaten with iron bars and sand-filled PVC
pipes. Sometimes he was tied up side down and a fire, with chillies,
lit underneath his head lasting 10 or 15 minutes until he passed out.
On 4 or 5 occasions he was subjected to electric shock treatment to
his genitals. He admitted his previous involvement with the LTTE. He
was released on 3 October 1988 after his parents managed to bribe the
Commanding officer. He then spent two weeks in hospital as he could
hardly walk. However, he was rearrested on 29 November 1988 by the
IPKF, accompanied by members of the Eelam People's Revolutionary
Liberation Front (EPRLF). He received the same ill-treatment as
before and was released on 30 December 1988 following a further bribe
from his parents. He went into hiding for two months, tried going to
Canada but was cheated by an agent who left him in Malaysia. He then
had to return to Sri Lanka in April 1989 and hid in Colombo. There he
was once beaten up by navy personnel. Since his return to the United
Kingdom he states that the IPKF and EPRLF are still harassing his
family.
d) The fourth applicant
71. The fourth applicant comes from Achelu but received his
schooling 15 miles away in Point Pedro until December 1986 when he
took 'O' level examinations. He claims to have been detained 5 times
by the State armed forces: in 1983 for one month, in 1984 for one day,
in 1985 for one week, in 1986 for half a day and in 1987 for one and a
half days.
72. In May 1984 the army set fire to his school, Hardly College at
Point Pedro. Half of the school was destroyed and the army occupied
the other half. The school was moved to a temporary shed. The fourth
applicant was arrested the day after the raid and, accused of burning
down the school, was taken to the local army camp where he was held
for 6/7 hours. The principal of the school protested and secured his
release.
73. In May 1986, while the fourth applicant was on his way to
school by bus, an army helicopter bombed a bridge which the bus was to
cross and everyone was ordered off the bus. 16 people were taken to a
nearby temple and held for 4 hours. They were then taken to the
Thonhondamanai army camp for further questioning. The fourth
applicant was at the camp from 6 h to 13 h and was released alone. He
was not ill-treated but threatened with ill-treatment. His elder
brother in the meantime fled to France (January 1986) where he was
granted political asylum.
74. After August 1986 there was intensive shelling by the army and
the fourth applicant's family dug trenches round their house in which
they spent long periods.
75. On 1 January 1987 the family home in Achelu was destroyed by
army bombing from the air and advancing armed forces on the ground.
The fourth applicant and his father ran in the direction of Urelu (3
miles from Achelu) during the bombing, his mother and sister ran in
the opposite direction. He has not seen either his mother or sister
since. His father returned to the family house to find it destroyed
and on 15 January 1987 took his son to Colombo by bus. They were
arrested at Elephant Pass, 30 miles from Jaffna, and held at the army
camp there for one and a half days.
76. They arrived in Colombo on 18 January 1987, where his father
arranged with an agent for his son to leave Sri Lanka. The fourth
applicant had felt insecure in Colombo as he had Tamil identity cards
and the authorities knew he was not a local. He flew to Kuala Lumpur
on 2 February 1987. He then flew to London via Malaysia and Dhaka,
arriving at Heathrow airport on 13 February 1987 where he requested
asylum. Several pages of his passport had been removed. He was one
of the group of 64 Tamil asylum seekers (cf. para. 61 above).
77. The fourth applicant was detained pending the proceedings. He
was interviewed twice in the Tamil language with the assistance of an
interpreter. During these interviews he described the events outlined
above. He also averred that he had not been politically involved in
Sri Lanka.
78. In accordance with paragraph 73 of the Statement of Changes in
Immigration Rules, the matter was referred to the Refugee Section of the
Home Office. They concluded that the fourth applicant had not
established a well-founded fear of persecution for the purposes of the
1951 Refugee Convention and his application was refused on 17 February
1987. However, application for leave to apply for judicial review was
made to the Divisional Court and granted on 24 February. On 2 March
the Home Office informed the fourth applicant's solicitors that a
fresh decision would be taken on the asylum claim.
79. Representations from the United Kingdom Immigrants' Advisory
Service were received and the fourth applicant was re-interviewed
about his asylum claim on 23 April 1987. The application for asylum
was reconsidered in the Refugee Section, but they again concluded that
he had not demonstrated that he had a well-founded fear of persecution
for the purposes of the 1951 Refugee Convention. Details of the case
were referred to Ministers, who reached a similar conclusion. The
fourth applicant was informed of this decision on 1 September 1987 in
a letter which read as follows:
"You applied for asylum in the United Kingdom on the
grounds that you have a well-founded fear of persecution
in Sri Lanka for reason of race, religion, nationality,
membership of a particular social group or political
opinion. The Secretary of State has further considered
your application.
Sri Lanka has in recent years experienced considerable
disorder which the Sri Lanka authorities have had to
take measures to control. As a result of this disorder
individuals of all ethnic groups have suffered. However
the Secretary of State, having considered all the
available evidence, does not consider that Tamils in
Sri Lanka are a persecuted group who have a claim to
refugee status under the 1951 UN Convention Relating
to the Status of Refugees simply by virtue of their
ethnic or national origins.
Nevertheless the Secretary of State does consider
individual applications for asylum made by Tamils from
Sri Lanka to see whether they fall within the terms of
the 1951 UN Convention. This depends on the
circumstances in the individual case.
In support of your application you said that your life
was in danger in Sri Lanka and that your house had been
damaged by army shelling. You also said that you had
once been held up by the army with the others on your
school bus for 6 hours, and also that the bus you were
travelling on from Jaffna to Colombo had been held up
by the army for 24 to 36 hours. At your interview on
13 April 1987 you added that you had been picked up by
the army and held for an hour in 1984.
However the Secretary of State has also taken account
of the fact that the damage to your house had been
caused by indiscriminate shellings, that neither you
nor your travelling companions had been harmed in any
way on the two occasions you were held up and that you
had not been harmed while detained for an hour in 1984.
Moreover the United Kingdom Immigrants' Advisory Service
have stated on your behalf that you did not stay in Colombo
after reaching there on 18 January 1987 because you felt
insecure on account of holding a Tamil identity card and
because the authorities knew that you were not a local.
You stated at a further interview in April 1987 that you
thought your father, who had accompanied you to Colombo
and saw you off on the plane on 2 February, had probably
gone back to take up his job as a teacher in a government
run school and had re-established contact with your mother
and sister.
Having taken account of all the matters you have put
forward in support of your application and of the other
matters set out in this letter the Secretary of State
is not satisfied that you have a well-founded fear of
persecution in Sri Lanka within the terms of the 1951
UN Convention Relating to the Status of Refugees.
Since you do not otherwise qualify for leave to enter the
United Kingdom, the Immigration Service have been instructed
to arrange your removal to Sri Lanka to which country you are
returnable under para. 10 of schedule 2 to the Immigration
Act 1971."
80. Arrangements for the fourth applicant's removal were made for
4 September 1987.
81. The subsequent events in this case up to the fourth
applicant's removal to Sri Lanka were identical to those of the first
applicant (see paras. 24-27 above).
82. The fourth applicant was removed to Sri Lanka on 12 February
1988. He was escorted by police officers, the Sri Lankan authorities
having been forewarned. His name was published in Sri Lankan
newspapers. He was first interviewed briefly on arrival by the Sri
Lankan immigration authorities at the airport. A member of the
British High Commission was also present at the airport on arrival.
The removal expenses were paid by the Home Office and the fourth
applicant had funds in excess of £100. He was then interviewed
aggressively by the Sri Lankan police for four hours about his
association with Tamil groups and the travel agencies who had been
involved in his escape to the United Kingdom. His fingerprints were
taken.
83. After the fourth applicant's return to Sri Lanka an appeal was
lodged in the United Kingdom by his solicitors on his behalf against
the refusal of asylum. They went to Colombo to interview and take
statements from him. He told his solicitors that on his return he
stayed with a charitable family friend in Colombo because no trace had
been found of his family. He did not go out unless escorted by a
Singhalese speaker who could deal with any trouble from the police. He
had many difficulties because he did not have an identity card. (It
had been lost by the Home Office immigration service.) He could not
try to find his family because he could not get through the many
checkpoints. He was thereby trapped outside his home area.
84. The fourth applicant stated that he was arrested without any
identity card by the police on or around 10 March 1988. He was
detained for four hours and questioned about his activities in
Colombo. The family friend persuaded the police to release him. The
atmosphere in Colombo for Tamils was very tense for they were subject
to attack by Sinhalese. In May 1988 the fourth applicant was again
arrested by the police at the friend's shop. He was detained
overnight and beaten with belts and kicked for about half an hour. He
was accused of hiding Tamil terrorists from the LTTE group. The
family friend managed to bribe someone to obtain the applicant's
release. The beating aggravated an ulcer condition that began when
the applicant was in the United Kingdom. As a result he had to spend
a week in hospital and caused much expense to his friend who paid for
all necessary treatment and medicines.
85. The fourth applicant was further distressed to see a
television report in which two of his relatives were shown to have
been killed in crossfire between the LTTE and the IPKF several miles
from his home village.
86. The fourth applicant's appeal in the United Kingdom was
successful. An adjudicator upheld his claims on 13 March 1989. The
fourth applicant was subsequently allowed to return to the United
Kingdom on 4 October 1989, where he was granted exceptional leave to
remain for 12 months (paras. 101-105 below).
e) The fifth applicant
87. The fifth applicant is from Manor Town which is in the
north-west of Sri Lanka about 90 miles from Jaffna. This town was
constantly bombarded by the State's military forces towards the end of
1986. Many Tamils were hiding in the jungle. His family home and shop
were burnt down in 1985 by soldiers. The applicant believed that two
of his brothers had been shot dead by the army in 1986. He had
already witnessed the army killing two people in 1985. At that time
the fifth applicant was hiding in the jungle otherwise he thought that
he would have been killed too. He was shot at by soldiers passing
through his town. There have been problems in the applicant's area
since 1983 with the town's Sinhalese majority. Many people have been
killed and buildings destroyed. There had been rumours of massacres
elsewhere.
88. There was an army camp 5 miles from the fifth applicant's
home. Young men were particularly at risk. If the military saw them
they were liable to summary arrest, torture or even murder. People
ran away when they saw soldiers coming, although by the time the
applicant left Sri Lanka they were mostly confined to their camps.
Nevertheless soldiers would search for people in convoys. The fifth
applicant's area was controlled by Tamil separatists. His house was
searched weekly by the army. He was not a member of any political
group or terrorist organisation.
89. The fifth applicant paid an agent 50,000 Sri Lankan rupees to
get him out of Sri Lanka, which he left from Colombo Airport. He
travelled alone, spending over a month in Bangkok. He arrived at
Heathrow Airport on 19 March 1987 and claimed asylum, although he had
originally planned to go to Canada. Several pages had been removed
from his passport. On 20 March he was interviewed in the Tamil
language with the assistance of an interpreter. During this interview
he described the events outlined above.
90. In accordance with paragraph 73 of the Statement of Changes in
Immigration Rules, the fifth applicant's request for asylum was
referred to the Refugee Section of the Home Office. They concluded
that the applicant had not demonstrated a well-founded fear of
persecution for the purposes of the 1951 Refugee Convention. Details
of the case were referred to Ministers in the Home Office, who reached
a similar conclusion. Accordingly on 1 September 1987 a refusal
notice was served on the fifth applicant, who had remained in
detention pending consideration of his case.
91. The Secretary of State's refusal of the fifth applicant's
asylum request was in the following terms:
"You have applied for asylum in the United Kingdom on the
grounds that you have a well-founded fear of persecution
in Sri Lanka for reason of race, religion, nationality,
membership of a particular group or political opinion.
Sri Lanka has in recent years experienced considerable
disorder which the Sri Lanka authorities have had to
take measures to control. As a result of this disorder
individuals of all ethnic groups have suffered. However
the Secretary of State, having considered all the
available evidence, does not consider that Tamils in
Sri Lanka are a persecuted group who have a claim to
refugee status under the 1951 UN Convention Relating
to the Status of Refugees simply by virtue of their
ethnic or national origins.
Nevertheless the Secretary of State does consider
individual applications for asylum made by Tamils from
Sri Lanka to see whether they fall within the terms of
the 1951 UN Convention. This depends on the
circumstances in the individual case.
In support of your application you said that it was
impossible to live in Sri Lanka because Tamils are being
persecuted. There was an army camp 5 miles from your
village and villagers were always being chased away by
troops. You said that your parents' home was burnt down
in 1985 together with the rest of your village and that
you had been questioned and threatened by troops in
February 1985 and your shop had been burnt down. You
also said that two of your five brothers had been shot
dead by troops.
However the Secretary of State has also taken account
of the fact that you lived safely in Sri Lanka for two
years following the destruction of your parents' home and
of your shop and that your parents have lived in a small
house the other side of the forest from where they used
to live and that you helped on your father's land. Your
parents, three other brothers and four sisters, some
married with families of their own have, on the information
which you have provided, continued to live safely in Sri
Lanka to the present time.
Having taken account of all the matters you have put
forward in support of your application and of the other
matters set out in this letter the Secretary of State
is not satisfied that you have a well-founded fear of
persecution in Sri Lanka within the terms of the 1951
UN Convention Relating to the Status of Refugees.
As you do not otherwise qualify for entry under the
Immigration Rules I therefore refuse you leave to enter."
92. Arrangements for the fifth applicant's removal to Sri Lanka
were made for 4 September 1987.
93. The subsequent events in this case up to the fifth applicant's
removal to Sri Lanka were identical to those of the first applicant
(see paras. 24-27 above).
94. The fifth applicant was returned to Sri Lanka on 12 February
1988. He was escorted by police officers, the Sri Lankan authorities
having been forewarned. His name was published in Sri Lankan
newspapers. A member of the British High Commission was present at
the airport on arrival. The removal expenses were paid by the Home
Office and the fifth applicant had funds in excess of £100.
95. On returning to Sri Lanka the fifth applicant had difficulties
because, like the fourth applicant, he had no identity card. (It had
been temporarily lost by the Home Office immigration service and was
returned to him by post later.) He obtained a forged card and managed
to escape arrest during numerous police searches. His brother joined
the LTTE and the fifth applicant had money extorted out of him for
this Tamil separatist cause. He was suspected by the Sri Lankan and
Indian authorities and is still being sought by them. He apparently
managed to leave Sri Lanka again. Although his whereabouts were
undisclosed for some time, he kept in contact with his solicitors, who
lodged an appeal in the United Kingdom on his behalf against the
refusal of asylum. This appeal was successful. An adjudicator upheld
his claims on 13 March 1989. The fifth applicant was subsequently
allowed to return to the United Kingdom on 28 August 1989, where he
was granted exceptional leave to remain for 12 months (paras. 101-105
below).
f) The situation in Sri Lanka
96. Sri Lanka has a population of 16.1 million, of which 74 % are
Sinhalese and 18 % are Tamil Hindus. The Tamils are concentrated in
particular areas, and in the northern peninsula of Jaffna account for
over 90 % of the population. The history of the ethnic conflict
between Tamils and Sinhalese goes back for generations, with
Sinhalese, anti-Tamil chauvinism being a major factor in Sri Lankan
politics since 1948. This history was outlined by Professor James
Manor, a specialist in South Asia politics whose evidence was fully
accepted by an independent adjudicator (see below paras. 101-102).
One result of the anti-Tamil sentiment in Sri Lanka has been a series
of pogroms against Tamil communities, particularly since 1956, and
which increased dramatically in 1983, triggered off by the killing of
13 Sri Lankan soldiers by a Tamil liberation group. A state of
emergency was proclaimed which is still in force. This resulted in
considerable governmental violance against the Tamil community,
including organised massacres tolerated, if not approved of, by the
Government.
97. An Accord was signed between Sri Lanka and India on 29 July
1987 which must be judged in the light of this ethnic violence.
Professor Manor foresaw in August 1987 that such an Accord had little
hope of lasting, given the country's fundamental ethnic disunity.
Following the Accord the Indian Army entered Tamil areas with a view
to protecting the Tamil community and the Sinhalese forces were to be
returned to barracks. However, quite quickly the Indian Peace Keeping
Forces (IPKF) became involved in fighting Tamil extremists who
rejected the Accord. Incidents of arrest, arbitrary detention,
torture and destruction were reported, especially in October and
November 1987, with indiscrimate shelling and shooting in villages and
towns in the north. There was a siege of Jaffna town when it was
estimated that some 2000-5000 civilians were killed by the IPKF with a
high level of atrocities committed during the assault on the town and
thereafter. Identity cards were indispensable for Tamils at this
time, not only a Sri Lankan identity card, but also a card issued by
the IPKF for anyone in the north, in order to avoid the risk of
summary detention.
98. When the applicants were returned to Sri Lanka in February
1988 reports of civil disturbance and confusion there were still
rife. The respondent Government analysed the situation as follows:
they accepted that there was widespread disruption and violence,
particularly in the north and east of Sri Lanka, although large parts
of the country remained quiet. The disturbances seem to have eased
off in December 1987. They considered that the Sri Lankan Government
were firmly committed to the restoration of law and order, civil
rights for all communities and the democratic election of regional
representatives. They knew of the July 1987 Accord with the Indian
Government and the voluntary repatriation of a large number of Sri
Lankan Tamils, mostly having taken refuge in India, under a scheme
organised by the United Nations High Commissioner for Refugees in
response to provisions in the Accord to this effect. Under this
scheme over 23,000 Tamils returned between late December 1987 and
August 1988 (some 5000 between April and August 1988). Other Western
European countries were also beginning to send Tamils back to Sri
Lanka by that time (e.g. the Netherlands and France). Although there
could be no guarantee that individual Sri Lankan citizens would not be
caught up in the violence caused by fighting between Tamil terrorists
and the IPKF, nevertheless, in the respondent Government's view the
risks faced were common to all Sri Lankans and did not justify the
applicants' claims to be allowed to enter and remain in the United
Kingdom.
99. The applicants' analysis of events differed considerably in
that they considered that the civil disruption created a risk of
continued persecution for them. Amnesty International had reported
disappearances and torture. Amnesty, the British Refugee Council and
the United Nations High Commissioner for Refugees had in December 1987
each urged the respondent Government not to send any Tamils back to
Sri Lanka in view of the instability at that time, the uncertain
effect of the July Accord and reports of human rights violations by
both the Sri Lankan security forces and the IPKF.
100. A report by the Asia Committee of the British Refugee Council
dated 15 December 1987 noted that there was widespread devastation of
property as well as food and health problems, although since the
beginning of November 1987 the situation had slightly eased. However,
the view was maintained that the whole of the majority Tamil areas was
subject to guerilla attack, and counter-attack by the IPKF, and that
little resembling normal life was possible.
g) The applicants' subsequent appeals and
their return to the United Kingdom
101. The applicants' solicitors lodged an appeal against the
asylum refusals to an adjudicator in the United Kingdom, pursuant to
section 13 of the Immigration Act 1971. They filed voluminous
documentary material concerning the past and present situation for
Tamils in Sri Lanka. None of this material was challenged by the
Secretary of State's representatives and no other material upon which
the latter based his decisions to refuse asylum was put before the
adjudicator. The adjudicator, in his determination of 13 March 1989,
found a consistency between the applicants' claims and the evidence of
non-governmental organisations and South Asia specialists. This showed
that generally the victims of individual ill-treatment at the hands of
Sri Lankan forces had been young male Tamils and that excessive force
had been used against non-combatants in the North by both Sri Lankan
armed forces and the IPKF afterwards. He accepted the applicants'
claim that they had left Sri Lanka for fear that as young Tamils they
were at risk of, inter alia, "interrogation, detention and even
physical harm". He largely believed the accounts given by the
applicants of their personal situations:
- as regards the first applicant, the raid on the family
business, the death of his cousin, his arrests and detention in 1986
and later, on his return to Sri Lanka, his interrogation by the police
(but not his claim to membership of PLOTE);
- as regards the second applicant, his family situation, the
alleged detention and assault, destruction of his home and, on his
return to Sri Lanka, his arrest and ill-treatment in Jaffna;
- as regards the third applicant, his arrests, interrogations
and death of his brother (but not his claim to membership of the
LTTE);
- as regards the fourth applicant, the destruction of his family
home by shelling, the incidents he witnessed and, on his return to Sri
Lanka, his detention several times due to his lack of an identity
card;
- as regards the fifth applicant, the arson of his home,
the shooting dead of two of his brothers and, after his return to Sri
Lank, the arrest of his family and relatives.
102. The adjudicator concluded that the applicants had had a
well-founded fear of persecution and he held as follows:
- that they were all entitled to asylum at the time of the
Secretary of State's decision;
- that the circumstances since that time have not materially
changed;
- that the Secretary of State's decisions in respect of all the
applicants were not in accordance with the law;
- that the applicants' appeals were accordingly allowed and
- that they should be returned to the United Kingdom with the
minimum of delay, the fourth and fifth applicants being entitled to
indefinite leave to remain in the United Kingdom.
103. The Secretary of State's appeal to the Immigration Appeal
Tribunal was rejected on 19 April 1989 as being out of time, the 14
day time limit for lodging appeals having been missed due to an
administrative error (the envelope containing the notice of appeal had
been wrongly addressed). On 12 May 1989 the Secretary of State
applied for judicial review of the Tribunal and adjudicator's
decisions. In particular the Secretary of State challenged the
lawfulness or reasonableness of adjudicator's directions that the
applicants be returned to the United Kingdom. Leave for judicial
review was granted by Mr. Justice McCowan on 17 May 1989 and the case
was heard on 11 July 1989 by Lord Justice Lloyd and Mr. Justice Auld.
The Court upheld the decision of the Immigration Appeal Tribunal. On
31 July 1989 the Secretary of State applied for a stay of execution
against the return of the five applicants pending a possible appeal
against the refusal of judicial review. This application was rejected
on 31 July 1989.
104. As a result, the Home Office wrote to the applicants'
solicitors on 1 August 1989 informing them that the High Commission in
Colombo was authorised to issue visas to the applicants for their
return to the United Kingdom where their applications for asylum would
be considered afresh. Four of the applicants returned to the United
Kingdom on 4 October 1989. The fifth applicant had arrived in the
United Kingdom from Paris on 28 August 1989. The United Kingdom
Government had paid all the fares and, on arrival, they were all
granted exceptional leave to remain for 12 months.
105. As of 11 October 1989 the Secretary of State still had an
appeal pending to challenge a finding by Mr. Justice Auld in the High
Court that two of the applicants were entitled to raise their asylum
claim on appeal to the adjudicator notwithstanding the fact that they
were refused leave to enter as visitors before they made their
requests for asylum.
B. Relevant domestic law and practice
a) Appeal rights of an asylum seeker under the
Immigration Act 1971
106. Special provision is made for the position of refugees and for
those seeking asylum in the United Kingdom in the Statement of Changes
in Immigration Rules HC 169 (9 February 1983) ("the Rules"). Paragraph
16 of the Rules provides as follows:
"Where a person is a refugee full account is to be taken
of the provisions of the Convention and Protocol relating
to the Status of Refugees (Cmnd. 9171 and Cmnd. 3096).
Nothing in these Rules is to be construed as requiring
action contrary to the United Kingdom's obligations under
these instruments."
107. An application for asylum can be made by a person either on
arrival at a port in the United Kingdom or after entering the country.
If the application is made on arrival, it is, by virtue of section
4(1) of the Immigration Act 1971 ("the 1971 Act"), dealt with by an
immigration officer in accordance with paragraph 73 of the Rules,
which reads as follows:
"Special considerations arise where the only country to
which a person could be removed is one to which he is
unwilling to go owing to well-founded fear of being
persecuted for reasons of race, religion, nationality,
membership of a particular social group or political
opinion. Any case in which it appears to the immigration
officer as a result of a claim or information given by the
person seeking entry at a port that he might fall within
the terms of this provision is to be referred to the Home
Office for decision regardless of any grounds set out in
any provision of these Rules which may appear to justify
refusal of leave to enter. Leave to enter will not be
refused if removal would be contrary to the provisions
of the Convention and Protocol relating to the Status
of Refugees."
108. Article 1.A(2) of the Refugee Convention, as amended by the
1967 Protocol, reads, so far as is relevant, as follows:
" ... the term 'refugee' shall apply to any person who:
(2) owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership
of a particular social group or political opinion,
is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to
avail himself of the protection of that country ..."
109. If an application for leave to enter as a refugee is refused
at this stage (that is to say, before leave to enter the United
Kingdom is given), there is a right of appeal on the merits against
that refusal under section 13 of the 1971 Act to the appellate
authorities set up under Part II of that Act ("the appellate
authorities"), but such right may in general only be exercised from
outside the United Kingdom. Appeals in the first instance are to an
adjudicator, who is a single judge, appointed by the Home Office.
From there appeals lie, usually with leave, to a three-person
Immigration Appeal Tribunal. Members of the Tribunal are appointed by
the Lord Chancellor and need not have legal qualifications, although a
lawyer must preside sittings.
110. By virtue of section 17 of the 1971 Act, where directions are
given for a person's removal from the United Kingdom on his being
refused leave to enter, he may appeal to an adjudicator against the
directions on the ground that he ought to be removed (if at all) to a
different country or territory. It is for the person concerned to
find another country which will accept him.
111. By virtue of section 13(1) of the 1971 Act a person who is
refused leave to enter the United Kingdom may appeal to an adjudicator
against the decision that he requires leave or against the refusal.
However, a person is not entitled to appeal against a refusal of leave
to enter so long as he is in the United Kingdom unless he was refused
leave at a port of entry and at a time when he held a current entry
clearance or was a person named in a current work permit. Entry
clearance is not normally available for refugees. Since the
applicants in the present case did not have current entry clearances
or work permits, their appeals under section 13 had to be lodged from
outside the United Kingdom.
112. The procedure for determining an appeal by an asylum seeker
against a refusal of leave to enter is governed by the Immigration
Appeals (Procedure) Rules 1984 (S.I. 1984/2041). An appellant can be
represented at the appeal by the United Kingdom Immigrants' Advisory
Service (UKIAS) which is funded by the Secretary of State under
section 23 of the 1971 Act for the purpose of enabling it to give
advice and assistance to those with appeal rights under the Act.
Alternatively, an appellant can be represented by solicitors. Since
the Government provide UKIAS with funds to enable it to provide free
advice and assistance to appellants, there is no provision for legal
aid for those who are represented privately by solicitors. Provision
is made in the Immigration Appeals (Procedure) Rules 1984 for the
submission of an explanatory statement by the Government (rule 8);
for the appellate authority to require the furnishing of particulars
(rule 25); for the summoning of witnesses (rule 27); for each party
to the appeal to be heard (rule 28); for the receiving of oral,
written or other evidence (rule 29); and the inspection of
documentary evidence (rule 30). No provision is made in the
Immigration Rules for an appellant to return to the United Kingdom to
attend his appeal, but his representations may be submitted in writing
or through his representative. The appellant may seek an expedited
hearing from the appellate authorities. If the appeal is successful,
the adjudicator under section 19 of the 1971 Act, or the Tribunal
under section 20 of that Act, shall make such directions for giving
effect to the determination as is necessary. In the case of a
successful appeal from abroad by an asylum seeker the direction may
require the entry clearance officer to grant the necessary entry
clearance to enable the appellant to return to the United Kingdom if
he were still able to do so by then. The statute requires compliance
with any such direction. The adjudicator or Tribunal may also make
recommendations with respect to any other action which the adjudicator
or Tribunal consider should be taken in the case. Either party may
appeal the adjudicator's determination to the Immigration Appeal
Tribunal. In addition, the Tribunal's determination can be challenged
by judicial review and legal aid is available, if necessary, for this
purpose.
b) Judicial review
113. The question whether an application for asylum in the United
Kingdom should be granted is one for the determination of the
Secretary of State, subject to the statutory right of appeal on the
merits described above. There is no power in a court (as opposed to
the appellate authorities) to determine whether a person is a
refugee. However, the decision of the Secretary of State is liable to
judicial review and may be quashed on a variety of grounds. Leave to
apply for judicial review may be obtained at short notice and legal
aid may be available, for the purposes of such an application, to any
person regardless of nationality whose application for asylum on
arrival in the United Kingdom has been refused.
114. The courts will examine whether the Home Secretary has
correctly interpreted the law in relation to the grant or refusal of
asylum. If the courts are satisfied that he has made no error of law
they may nevertheless review the refusal of asylum in the light of the
"Wednesbury principles" (Associated Provincial Picture Houses Ltd v.
Wednesbury Corporation <1948> I K.B. 223). The challenge in the
courts of the Home Secretary's exercise of discretion is thereby
limited to investigation of whether he left out of account a factor
that should have been taken into account or took into account a factor
he should have ignored, or whether he came to a conclusion so
unreasonable that no reasonable authority could have reached it.
115. The extent and effect of judicial review was demonstrated by
the House of Lords in the Bugdaycay case (R v. Home Secretary ex parte
Bugdaycay and Others <1987> 1 All ER 940) when it was held that the
Home Secretary had indeed failed to appreciate a factor which he
should have specifically dealt with. This failure was held to be
fatal to the refusal of asylum. Lord Bridge, while acknowledging the
limitations of the Wednesbury principles, explained that the courts
will apply them extremely strictly against the Home Secretary when a
refusal of asylum is under review:
" ... all questions of fact on which the discretionary
decision whether to grant or withhold leave to enter or
remain must necessarily be determined by the Immigration
Officer or the Secretary of State ... The question
whether an applicant for leave to enter or remain is or
is not a refugee is only one, even if a particularly
important one ... of a multiplicity of questions which
immigration officers and officials of the Home Office
acting for the Secretary of State must daily determine
... determination of such questions is only open to
challenge in the courts on well-known Wednesbury
principles ... there is no ground for treating the
question raised by a claim to refugee status as an
exception to this rule ...
Within those limitations the court must, I think, be
entitled to subject an administrative decision to the
more rigorous examination to ensure that it is in no
way flawed, according to the gravity of the issue which
the decision determines. The most fundamental of all
human rights is the individual's right to life and
when an administrative decision is under challenge is
said to be one which may put the applicant's life at
risk, the basis of the decision must surely call for
the most anxious scrutiny."
116. Lord Templeman added:
"In my opinion where the result of a flawed decision
may imperil life or liberty a special responsibility
lies on the court in the examination of the decision
making process."
117. It is to be stressed, however, that the courts' control is
limited to a review of whether there has been a defect in the decision
making process (Lord Templeman, R v. Home Secretary ex parte Musisi
(1987) 1 All ER 514).
118. The courts have held that it is appropriate that the Secretary
of State should remain the authority who determines whether passengers
arriving at the ports should be allowed to remain as refugees on the
basis that he is the only authority with the knowledge and expertise
to make a proper determination on these matters. Moreover, the courts
have held that, whereas it is appropriate for judges to review the
Secretary of State's decision on an application for judicial review,
it is not appropriate for judges to have the role themselves of
determining applications in the first instance. Lord Justice Lawton
commented as follows in R v. Nazari <1980> 3 All ER 880 in the Court
of Appeal at page 885:
" ... the courts are not concerned with the political
systems which operate in other countries. They may be
harsh; they may be soft; they may be oppressive; they
may be the quintessence of democracy. The court has no
knowledge of those matters over and above that which is
common knowledge and that may be wrong. In our judgment
it would be undesirable for this court or any other court
to express views about regimes which exist outside the
United Kingdom of Great Britain and Northern Ireland.
It is for the Home Secretary to decide in each case
whether an offender's return to his country of origin
would have consequences which would make his compulsory
return unduly harsh. The Home Secretary has opportunities
of informing himself about what is happening in other
countries which courts do not have ..."
119. This approach was confirmed by the House of Lords in
aforementioned Bugdaycay case, where Lord Templeman stated as follows
at page 955 c and d:
"The 1971 Act does not allow the courts of this country
to participate in the decision making or appellate processes
which control and regulate the right to enter and remain
in the United Kingdom. This also is not surprising.
Applications for leave to enter and remain do not in
general raise justiciable issues. Decisions under the
Act are administrative and discretionary rather than
judicial and imperative. Such decisions may involve the
immigration authorities in pursuing inquiries abroad, in
consulting official and unofficial organisations and in
making value judgments. The only power of the court is
to quash or grant other effective relief in judicial
review proceedings in respect of any decision under the
Act of 1971 which is made in breach of the provisions of
the Act or the rules thereunder or which is the result
of procedural impropriety or unfairness or is otherwise
unlawful."
120. The courts have indicated that in considering whether to grant
leave to apply for judicial review to asylum seekers who have been
refused leave to enter the United Kingdom they attach considerable
importance to the giving of reasons by the Secretary of State for his
decision to refuse asylum (see R v. Secretary of State for the Home
Department ex parte Gurmeet Singh (22 May 1987) unreported). Since
the Singh case the Home Office now gives asylum seekers a written
statement of the reasons for the decision. This facilitates the
courts' review task.
121. Additional features of the judicial review process are that:
(aa) it has been established that an asylum seeker, in order
to satisfy the test that he has a well-founded fear of
persecution, does not need to prove that fear on a balance
of probabilities. A lesser degree of likelihood is
sufficient: "reasonable chance", "substantial grounds for
thinking" or "a serious possibility";
(bb) although the Home Secretary stated in the House of
Commons on 3 March 1987 that there can be no expectation
that asylum seekers will automatically be allowed to stay
in the United Kingdom until proceedings are completed,
the practice is usually that no applicant is removed from
the United Kingdom once he has obtained leave to apply for
judicial review. In this context it is important to note
that leave is granted at a point in the proceedings when
the applicant only has to show that he has an arguable
legal point in his favour;
(cc) if an application for leave to apply for judicial
review is refused a renewed application can be made to
the Court of Appeal;
(dd) even after the full hearing of the application for
judicial review the applicant can appeal on points of law
to the Court of Appeal as of right and can appeal to the
House of Lords either with the leave of the Court of
Appeal or the House of Lords.
c) The UKIAS referral system
122. Since 1983 where an asylum seeker is otherwise unrepresented,
his case may be referred to the Government subsidised United Kingdom
Immigrants' Advisory Service (UKIAS) for advice or other welfare
services.
123. Since 1 September 1988 no category of asylum seeker is
automatically excluded from the referral system. Where a person can
be sent to a third country where he does not fear persecution, UKIAS
will be telephoned to establish whether they wish to interview that
person, in which case two days will be allowed for this to be done and
representations made. Where an unrepresented person is likely to be
sent back to a country where he claims to fear persecution, if the
Home Office proposes to refuse the asylum application it will refer
the case to UKIAS who will have one week (for those in detention) or
four weeks (for those not detained) to make representations.
Ministers will take the relevant decision if the Home Office cannot
follow UKIAS recommendations.
d) Members of Parliament
124. Members of Parliament (MPs) frequently make representations to
the Minister about unsuccessful asylum seekers or other expulsion
cases. Prior to March 1987 a mere telephone contact could stop a
removal pending further representations being made. New arrangements
are under consideration in which, for example, a five day stay of
removal could be agreed if new and compelling evidence has become
available which the Home Office has been unable to consider.
e) The decision making process in asylum cases
125. Where an application for asylum is made on arrival at the
port, an immigration officer will, with the aid, if necessary, of an
interpreter, interview the passenger. Immigration officers are
trained in asylum matters as part of their general training. A recent
development has been the involvement of the United Nations High
Commissioner for Refugees in this training. The matter is then, in
pursuance of Rule 73 of the Immigration Rules, referred to the
specialist Refugee Section of the Home Office's Immigration and
Nationality Department. No decision on an asylum application is taken
by an immigration officer at the port.
126. The specialist Refugee Section has a large staff, who are
divided into geographical sections under four Senior Executive
Officers ("SEO's") responsible for the Middle East, the Far East,
Africa and Eastern Europe/the Americas. The Section is headed jointly
by two grade 7's (i.e. the former Principal grade) to each of whom two
SEO's report. There is also a Research Unit which collates and
disseminates background information on specific countries and supports
the grade 7's on policy work. The whole Section is led by the Head of
Division (grade 5, the former Assistant Secretary grade).
127. An application is considered initially by an Executive Officer
in the appropriate geographical section. It is then assessed with a
recommendation to a Higher Executive Officer. He or she may decide to
grant asylum or exceptional leave; a decision to refuse outright must
be taken at at least SEO level. Cases which are complex or about
which an officer has particular doubts can be referred up to the
higher grade officers. A considerable degree of specialised knowledge
and experience can therefore be applied.
128. These arrangements are subject to the referral arrangements
with UKIAS described above. Where in any case referred to UKIAS
officials feel unable to grant an application following
representations from UKIAS against refusal, the case will be referred
to a Minister for decision and UKIAS will be informed of the issues to
be put before the Minister.
129. In the applicants' cases the decision to refuse asylum was
taken at ministerial level following a recommendation to that effect by
the Head of Division. In making this recommendation and taking this
decision, account was taken by the Minister and the Far East Section
of the Refugee Section not only of all the representations made on
behalf of the applicants but also of the position of Tamils as an
ethnic group within Sri Lanka and the prevailing conditions within the
country, which are monitored on a regular basis. Information about
the situation in Sri Lanka is derived from a wide range of sources.
In particular, the Far East section has available to it information
collected by the Research Unit of the Refugee Section, one of whose
functions is to collect, collate and disseminate information about
developments in countries which are relevant to the consideration of
asylum applications. The section derives its information about Sri
Lanka from numerous sources, including reporting telegrams from the
British High Commission in Colombo and advice from the Foreign and
Commonwealth Office, information from thousands of asylum applicants
from Sri Lanka, information from the United Nations High Commissioner
for Refugees, press articles, journals and reports from organisations
like Amnesty International directly concerned with the country. The
Foreign and Commonwealth Office supply information derived from
diplomatic representatives about developments in particular countries,
including Sri Lanka, on a routine basis. The combined sources of
information provide a substantial body of material about the situation
in Sri Lanka and the position of the communities within it, in
particular the Tamil community. This information has been further
supplemented by visits paid to Sri Lanka by the Ministers of State,
Mr. David Waddington in April 1987, succeeded by Mr. Timothy Renton
in September 1987.
130. Now that the applicants have returned to the United Kingdom,
should they apply for refugee status their cases will be considered on
the merits in the light of all the circumstances at the present time.
Moreover, if they were to be refused asylum then, provided the
application is made within the next 12 months during their current
leave to remain in the United Kingdom, they would have a right of
appeal from within the United Kingdom to the adjudicator and
Immigration Appeal Tribunal under section 14 of the Immigration Act
1971. f) The law and practice in the case of refugees to whom
the 1951 Refugee Convention does not apply
131. The power to give or refuse leave to enter and to remain in
the United Kingdom, in a case of a person not having refugee status
under the 1951 Refugee Convention, is exercisable at the discretion of
the Secretary of State. Accordingly, if a person entering the United
Kingdom is found not to be entitled to have refugee status, but
nevertheless alleges that if he is returned to his own country he runs
a real risk of being subjected to treatment inconsistent with the
provisions of Article 3 of the Convention, the Secretary of State, in
the exercise of his discretion, could decide that exceptional leave to
enter should be given. The respondent Government state that in 1988
57,4% of decisions in asylum cases were to give exceptional leave,
usually on humanitarian grounds, and in 25,4% of the cases the
entitlement to refugee status was accepted. 17,2% were outright
refusals. In 1988 235 Sri Lankans were given exceptional leave.
132. The remedies against the refusal of leave to enter the United
Kingdom for persons not having refugee status under the 1951 Refugee
Convention are those described in paragraphs 109-111 above, which
apply to all persons seeking leave to enter the United Kingdom. A
decision of the Secretary of State not to grant leave to a person who
claimed, in substance, that he would be subjected to treatment
inconsistent with Article 3 of the Convention could be challenged in
judicial review proceedings on the aforementioned principles of
administrative law (para. 114 above).
III. OPINION OF THE COMMISSION
A. Points at issue
133. The following are the points at issue in the present
applications:
- whether the applicants' removal to Sri Lanka was in breach of
Article 3 (Art. 3) of the Convention because it exposed them to a real
risk of torture or inhuman or degrading treatment in that country;
- whether the applicants had an effective remedy, pursuant to
Article 13 (Art. 13) of the Convention, in respect of their complaint
that their removal to Sri Lanka exposed them to such a risk.
B. As regards Article 3 (Art. 3) of the Convention
134. 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."
135. The applicants complained that their removal to Sri Lanka in
February 1988 by the United Kingdom was in violation of Article 3
(Art. 3) of the Convention. They submitted, inter alia, that the
removal exposed them to a serious risk of persecution and the kind of
ill-treatment proscribed by Article 3 (Art. 3) of the Convention.
They commented that the risk materialised on their return (cf.
adjudicator's determination of 13 March 1989, paras. 101-102 above).
The applicants noted that the facts of the cases were not seriously in
dispute and that the Government must have known from all the reports
coming from Sri Lanka at the material time that the situation there
had not settled. By December 1987 it was known that there had been
bloody confrontations between Tamils and the Indian Peace Keeping
Forces (IPKF) in northern Sri Lanka and Amnesty International's
reports catalogued claims of arbitrary killings, torture, detention
and disappearances in the Tamil communities. The information
available at the time of the applicants' removal to Sri Lanka was,
according to the applicants, sufficient to deduce that their fears of
suffering a similar fate were eminently reasonable.
136. The Government contended, inter alia, that the applicants'
removal to Sri Lanka did not constitute a breach of Article 3 (Art. 3)
of the Convention. They considered that at the material time all the
inhabitants of Sri Lanka faced risks from terrorist violence and the
security forces' efforts to contain it. The situation did appear to
be improving towards the end of 1987 and the beginning of 1988 as the
IPKF took on security duties following the Indian/Sri Lankan Accord of
July 1987 and the United Nations High Commissioner for Refugees began
the Tamil repatriation programme. The Secretary of State, whilst
acknowledging the civil disorder in Sri Lanka, did not consider that
the applicants personally faced persecution. The original incidents
related by the applicants were deemed to be random and part of the Sri
Lankan army's general activities to deal with Tamil extremists. The
ill-treatment which had allegedly been suffered on return to Sri Lanka
could not be verified by the Government and was, in their view,
irrelevant to the Convention issues. When the applicants' cases came
before the adjudicator in March 1989, the Secretary of State did not
seek to challenge substantially the facts alleged by the applicants,
but challenged the applicants' interpretation of the situation in Sri
Lanka and the conclusions drawn from that. The Government maintained
the Secretary of State's view that at the time of the applicants'
removal from the United Kingdom in February 1988 they did not face a
real personal risk of being singled out for ill-treatment contrary to
Article 3 (Art. 3) of the Convention in Sri Lanka.
137. The Commission refers to the judgment of the European Court of
Human Rights in the Soering case, confirming the Commission's
consistent case-law that Contracting States have an obligation under
Article 3 (Art. 3) of the Convention not to send people to countries
where there are substantial grounds for believing that they would be
in danger of being subjected to treatment proscribed by Article 3
(Art. 3) (Eur. Court H.R., Soering judgment of 7 July 1989, Series A
no. 161 paras. 86-91):
"In sum, the decision by a Contracting State to extradite
a fugitive 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, if extradited, faces a
real risk of being subjected to torture or to inhuman or
degrading treatment or punishment in the requesting country.
The establishment of such responsibility inevitably involves
an assessment of conditions in the requesting country
against the standards of Article 3 (Art. 3) of the Convention.
Nonetheless, there is no question of adjudicating on or
establishing the responsibility of the receiving country,
whether under general international law, under the
Convention or otherwise. In so far as any liability under
the Convention is or may be incurred, it is liability
incurred by the extraditing Contracting State by reason
of its having taken action which has as a direct consequence
the exposure of an individual to proscribed ill-treatment."
(Ibid para. 91).
138. The Soering case concerned extradition, but these general
considerations are of equal relevance to any forced removal of a
person to a country where he would face such a real risk. In the
Soering case the situation was that a likely course of events would
result in exposure to treatment proscribed by Article 3 (Art. 3) as
regards the "death row phenomenon". The present cases are different.
The risks that the applicants ran of such treatment followed from the
general situation and were risks shared by all non-combatants
resulting from security operations in the north and east of Sri Lanka
and there and elsewhere the risk shared by all of being subjected to
security checks and interrogation.
139. In the examination of the nature and extent of the risk
involved, and of the Contracting State's responsibility in exposing a
person to this kind of risk, the Convention organs must primarily
analyse the information which was available at the time of the removal
or proposed removal, for it is at this stage that the liability of the
Contracting State is incurred. As indicated in the Soering case, the
Contracting State is not directly responsible under the Convention for
the acts of the receiving State. However, what happens to the asylum
seeker on return cannot be wholly ignored as it may cast light on
whether the risk has been rightly or wrongly assessed by the
Contracting State.
140. The Commission must now turn to the assessment of the
conditions in Sri Lanka for Tamils in general, and the individual
applicants in particular, at the time of their removal to that country
in February 1988, against the standards of Article 3 (Art. 3) of the
Convention. It notes that the information coming out of that country
was unclear. On the one hand the Office of the United Nations High
Commissioner for Refugees (UNHCR) did not consider Tamils to be
refugees for the purposes of the 1951 UN Convention Relating to the
Status of Refugees (the 1951 Refugee Convention). At the request of
the Sri Lankan and Indian Governments, following their July 1987
Accord, it organised, from December 1987 onwards, a programme of
voluntary repatriation of Sri Lankan Tamils, mostly from India. On
the other hand it was urging the United Kingdom not to return Tamils
to Sri Lanka because of the instability there. The British Council of
Refugees reported widespread devastation, very difficult living
conditions and persistent fighting between Tamil terrorists and the
IPKF, yet noted a slow easing of the situation in November 1987. It
may not, therefore, have been certain by February 1988 that the July
1987 Accord between the Indian and Sri Lankan Governments would fail
and that the IPKF would be unable to stabilise the situation in the
north and east of Sri Lanka.
141. The Commission observes that there is no serious dispute
as to the facts of the present cases. What is contested is the
interpretation to be given to those facts. The applicants contended
that as young male Tamils who had already been caught up in the ethnic
conflict in Sri Lanka and exposed to real danger between 1984 and
1987, they faced a real risk of severe ill-treatment on return in
February 1988 because the situation had not fundamentally changed,
even if the excesses of the Sri Lankan army had been to a large extent
replaced by the excesses of the IPKF. The Government contended that
the original incidents related by the applicants were examples of the
general random activities of the security forces in dealing with
terrorist extremists and did not indicate that the applicants had been
personally singled out for persecution. The same would apply on their
return because the whole of the civilian population in Sri Lanka, in
the Government's view, ran a risk of being caught up in the fighting.
142. In view of these conflicting elements, the Commission
considers that the present cases turn on the questions whether the
United Kingdom Government exposed the applicants to a real personal
risk of treatment proscribed by Article 3 of (Art. 3) the Convention in
removing them to Sri Lanka in February 1988, or whether the situation
in that country was then such that it was reasonable in the
circumstances for the United Kingdom Government to conclude that on
return young male Tamils like the applicants would not necessarily be
subjected to such a risk.
143. The Commission notes that in February 1988 there was the
appearance of an improvement in the situation in the north and east of
Sri Lanka. There the Sinhala dominated security forces were no longer
in charge, the IPKF having taken over from them. Though there was
still occasional fighting between units of the IPKF and groups of
Tamil militants who rejected the Accord, the major fighting at Jaffna
had ended. The voluntary repatriation of Tamil refugees under a UNHCR
programme, constituted on the basis of a memorandum of understanding
with the Government of Sri Lanka signed on 31 August 1987, began at
the end of December 1987. Between April and August 1988 over 5,000
Tamils had returned under the UNHCR arrangements to the Jaffna
district. Others had returned independently. It would therefore
appear that, in the view of UNHCR at least, the position had improved
to the extent that the return of a large number of refugees was
justifiable. The improvement was relative and though many Tamils were
going about their ordinary affairs in Sri Lanka, they, and young
Tamils in particular, were at risk of interrogation, arrest and
detention, which in some instances were accompanied by treatment
proscribed by Article 3 (Art. 3), and indeed three of the applicants allege
that they were detained and ill-treated after their return. The
general situation in Sri Lanka was however at that time such that the
decision of the United Kingdom to send the applicants back to Sri
Lanka cannot be said to have been unreasonable or arbitrary.
Undoubtedly the applicants, like all other Tamils in Sri Lanka, were
exposed to the possibility of ill-treatment by the IPKF or the Sri
Lankan police. Nevertheless, it cannot be said that the risk to each
member of the Tamil community, or indeed to each young male member,
was such as to constitute in the removal of the applicants to Sri
Lanka a violation of Article 3 (Art. 3) of the Convention. The general
instability in Sri Lanka created risks for all non-combatants in
certain areas and the Commission does not find that the applicants can
be said to have faced greater personal risks on their return in
February 1988.
Conclusion
144. The Commission concludes, by a vote of seven to seven (1),
with a casting vote by the President, that there has been no violation
of Article 3 (Art. 3) of the Convention in respect of the applicants'
removal to Sri Lanka, given the information available at the relevant
date.
C. As regards Article 13 (Art. 13) of the Convention
145. Article 13 (Art. 13) of the Convention provides 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."
-------------
(1) The votes were cast pursuant to Rule 18 paras. 1 and 3
of the Rules of Procedure.
-------------
146. The applicants complained that they had no effective domestic
remedy, contrary to Article 13 (Art. 13) of the Convention to test their
substantive Article 3 (Art. 3) claim. They contended that the
possibilities of representations by the United Kingdom Immigrants
Advisory Service (UKIAS) and Members of Parliament on behalf of asylum
seekers could not be considered remedies, there being no mandatory
element involved in such interventions. The possibility of an appeal
to an adjudicator under section 13 of the Immigration Act 1971 was
rendered ineffective, in the applicants' view, by the fact that it
could only be exercised from outside the United Kingdom, i.e. from Sri
Lanka, in their case.
147. Finally, they submitted that judicial review was ineffective
in their cases because it is limited to a review of whether the
Secretary of State's decision refusing asylum was perverse, in the
sense that he omitted to have regard to material evidence. The courts
refuse to examine the well-foundedness of an asylum application for
themselves. The applicants alleged that the perversity test is too
restrictive, being an examination of the reasonableness of the
Secretary of State's decision, not the reasonableness of the
applicants' fears, and the considerations relevant to Article 3
(Art. 3) of the Convention being limited to refugee status under the
relevant immigration rules (reflecting the criteria of the 1951
Refugee Convention). The applicants further criticised the fact that
the material on which the Secretary of State bases his decision is not
disclosed to the courts, and the assessment of the political
complexities in a foreign country is left entirely to the executive
not the judiciary. The applicants also contended that their cases can
be distinguished from that of Soering (Eur. Court H.R., Soering
judgment, loc. cit.) because, inter alia, extradition applications
afford greater guarantees to the accused with the preliminary
proceedings before a magistrates court, habeas corpus providing
suspensive relief pending proceedings and the relative simplicity of
evidential issues in extradition cases, compared with the complexity
of evaluating the well-foundedness of a fear of persecution in asylum
cases.
148. The Government relied on judicial review, the UKIAS referral
system, representations by Members of Parliament and an appeal to an
adjudicator under section 13 of the Immigration Act 1971 as remedies
which, in aggregate, satisfied Moreover, judicial review alone, as
recognised by the Court in the Soering case, would satisfy the
requirements of Article 13 (Art. 13). The case of R v. Home
Secretary, ex parte Bugdaycay and others, demonstrates the anxious
scrutiny given to a decision of the Secretary of State which may
involve a risk to human life or treatment of the kind proscribed by
Article 3 (Art. 3) (paras. 115-116 above). The Government pointed out
that much of the argument which the applicants have placed before the
Commission was not advanced before the English courts, which were
principally dealing with the validity of claims under the 1951 Refugee
Convention. Despite the limitations of the latter Convention, the
Secretary of State, in accordance with the usual practice, did give
consideration to the wider humanitarian issues in these cases, in
order to determine whether exceptional leave should be granted
outside the Immigration Rules. However he decided that neither the
conditions in Sri Lanka nor the applicants' individual circumstances
were sufficient to justify the grant of exceptional leave.
149. Article 13 (Art. 13) of the Convention has been interpreted in
the following way by the European Court of Human Rights in the case of
Silver and Others:
"(a) where an individual has an arguable claim to be
the victim of a violation of the rights set forth in the
Convention, he should have a remedy before a national
authority in order both to have his claim decided and,
if appropriate, to obtain redress (see the ... Klass and
others judgment, Series A no. 28, p. 29, para. 64);
(b) the authority referred to in Article 13 (Art. 13) may not
necessarily be a judicial authority but, if it is not,
its powers and the guarantees which it affords are
relevant in determining whether the remedy before it is
effective (ibid., p. 30, para. 67);
(c) although no single remedy may itself entirely satisfy
the requirements of Article 13 (Art. 13), the aggregate of
remedies provided for under domestic law may do so (see, mutatis
mutandis, ... X v. the United Kingdom judgment, Series A
no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment
of 24 June 1982, Series A no. 50, p. 32, para. 56);
(d) neither Article 13 (Art. 13) nor the Convention in general
lays down for the Contracting States any given manner for
ensuring within their internal law the effective implementation
of any of the provisions of the Convention - for example, by
incorporating the Convention into domestic law (see the
Swedish Engine Drivers' Union judgment of 6 February 1976,
Series A no. 20, p. 18, para. 50).
It follows from the last-mentioned principle that the
application of Article 13 (Art. 13) in a given case will depend
upon the manner in which the Contracting State concerned
has chosen to discharge its obligation under Article 1
(Art. 1) directly to secure to anyone within its jurisdiction the
rights and freedoms set out in section I (see ... Ireland
v. the United Kingdom judgment, Series A no. 25, p. 91,
para. 239)."
(Eur. Court H.R., Silver and Others judgment of 25 March
1983, Series A no. 61, p. 42, para. 113)
150. In view of the Commission's considerations regarding Article 3
(Art. 3) of the Convention above (pp. 33-38), the applicants' claim
under that Article cannot be regarded either as incompatible with the
provisions of the Convention or "unarguable" on its merits (cf. Eur.
Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no.
131, p. 23, para. 52).
151. The principal dispute between the parties in the present case
concerns the efficacy of the remedies relied on by the Government,
either individually or in aggregate, namely, the UKIAS referral
system, representations by Members of Parliament, an appeal to an
adjudicator under section 13 of the Immigration Act 1971 or judicial
review.
152. The Commission considers that the UKIAS referral system and
representation by Members of Parliament (paras. 122-124 above) cannot
be deemed effective remedies for the purposes of Article 13 (Art. 13)
of the Convention. Although UKIAS or a Member of Parliament may be
able to influence the Secretary of State, who otherwise might have
refused an asylum application, their intervention on behalf of an
asylum seeker has no mandatory effect on that decision.
153. As regards the appeal to an independent adjudicator under
section 13 of the Immigration Act 1971, the Commission finds that in
many instances it would fully satisfy the requirements of Article 13
(Art. 13) of the Convention. The adjudicator is empowered to examine
the full merits of each case, both as regards fact and law, and may
hear evidence. The adjudicator may also substitute his evaluation for
that of the Secretary of State and his decisions are largely binding.
However this remedy was fatally flawed in the applicants' cases
because it could only be exercised from outside the United Kingdom.
The Commission finds that the protection required by Article 3
(Art. 3) of the Convention cannot be ensured if a person has to return
to the very country where he fears persecution before he can
effectively appeal against the asylum refusal.
154. The Commission now turns to the remaining possibility of
judicial review of the Secretary of State's decision to refuse
asylum. It notes that in the Soering case the Court found that
judicial review satisfied a claim that extradition from the United
Kingdom to the United States of America, where the accused would
probably face the "death row phenomenon", would be in breach of
Article 3 (Art. 3) of the Convention (Soering judgment, loc. cit.
paras. 121-124). The Government have relied on this judgment as
demonstrating the efficacy of judicial review for the purposes of the
present cases. The applicants have sought to distinguish their cases
from the Soering judgment.
155. The Commission considers that the remedy of judicial review
does not meet the requirements of Article 13 (Art. 13) of the
Convention in the present case. The Commission notes that judicial
review is available in respect of decisions taken under prerogative
powers as well as in respect of decisions taken under statutory powers
(see Council of Civil Service Unions v. Minister of the Civil Service
<1984> 3 All E.R. 935). A successful challenge to a decision could
however only be made on the Wednesbury basis (see para. 114 above) or,
as formulated in the Civil Service Unions case, on the ground of
illegality, irrationality or procedural impropriety. In the present
cases the only ground on which the refusal of the Secretary of State
to allow the applicants to remain in the United Kingdom could be
challenged was that the decision was irrational, that is to say, a
decision which no reasonable Secretary of State could have made. The
Commission is of the opinion that the consideration of the possible
perversity of the executive's decision in these cases is too
restrictive an examination in view of what may be at stake, namely the
possibility of someone being returned to a country where he would
allegedly be a target for arbitrary detention, torture, disappearance
or the like.
156. The Commission notes that judicial review by the English
Courts has significantly progressed over the last 20 years to check
the arbitrariness of administrative decisions. Furthermore, in asylum
cases the Courts have examined with care the application of the
Immigration Rules and the 1951 Refugee Convention. The position
however remains that in judicial review proceedings the Courts are
concerned with the way in which a decision is taken and not with the
merits of a decision. They have deliberately refrained from examining
the well-foundedness of the asylum seeker's claims or from reviewing
any of the material on which the Secretary of State has based his
decision. There is nothing in the facts of the applicants' cases
which suggests that the Secretary of State's refusal to grant
compassionate leave to remain in the United Kingdom could have been
the subject of a successful application for judicial review.
157. The Commission is also of the opinion that the present
applications can be distinguished on the facts from the Soering case.
In the Soering case the applicant, charged with particularly heinous
offences, was to be returned to a stable country, the United States of
America, where the rule of law and due process are respected. Mr.
Soering had the benefit of proceedings before the magistrates court,
whose findings led to the decision of the Secretary of State to
extradite him to the United States. He also had the possibility of
seeking a writ of habeas corpus, as well as judicial review.
Moreover, the evidential issues on the question of the risk of the
death penalty and the ensuing "death row phenomenon" were
comparatively simple in that case.
158. In the present cases it is not alleged that the applicants
were involved in terrorist activities in Sri Lanka, or indeed in any
criminal offences. They were to be returned to a country which had
been devastated by civil war in the areas where the applicants would
normally be expected to live. Stability and order had not been fully
restored in Sri Lanka even if there were some signs of amelioration.
The examination of the situation in Sri Lanka at the relevant time
raised complex evidential issues which were not decided by the English
courts. There was only one independent forum, that of limited
judicial review by the High Court of the reasonableness of the
Secretary of State's decision, before whom the present applicants
could put their case prior to removal, but, as the Commission has
already noted, this court did not even seek the disclosure of the
material upon which the Secretary of State based his decision.
159. In the Commission's view, the remedies afforded to asylum
applicants, for the purposes of Article 13 (Art. 13) of the
Convention, should be equal to, if not greater than, the judicial
safeguards afforded in extradition proceedings. Yet in the present
cases it seems that adequate safeguards were not forthcoming in the
judicial review proceedings.
160. The Commission is not persuaded that the four remedies relied
on by the Government could, as an aggregate, be said to satisfy
Article 13 (Art. 13) of the Convention. In matters as vital as asylum
questions it is essential to have a fully effective remedy providing
the guarantees of a certain independence of the parties, a binding
decision-making power and a thorough review of the reasonableness of
the asylum seeker's fear of persecution.
Conclusion
161. The Commission concludes, by 13 votes to one, that there has
been a violation of Article 13 (Art. 13) of the Convention, in that the
applicants did not have any effective domestic remedies available to
them in respect of their claim under Article 3 (Art. 3) of the Convention.
D. Recapitulation
162. The Commission concludes, by a vote of seven to seven, with a
casting vote by the President, that there has been no violation of
Article 3 (Art. 3) of the Convention in respect of the applicants'
removal to Sri Lanka, given the information available at the relevant
date (para. 144 above).
163. The Commission concludes, by 13 votes to one, that there has
been a violation of Article 13 (Art. 13) of the Convention, in that the
applicants did not have any effective domestic remedies available to
them in respect of their claim under Article 3 (Art. 3) of the Convention
(para. 161 above).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Partly dissenting opinion of MM. Trechsel, Ermacora,
Gözübüyük, Campinos, Mrs. Thune, Mr. Rozakis and
Mrs. Liddy, as regards the issue under Article 3
of the Convention
We consider that there has been a violation of Article 3 of
the Convention in the present cases for the following reasons:
We are of the opinion that even on the Government's analysis
of the situation in Sri Lanka in February 1988 the applicants faced a
real risk of severe ill-treatment on return to that country. As young
male Tamils being returned through the town of Colombo, dominated by
Sinhalese, with widespread devastation and continued fighting between
the Tamil terrorists and the security forces in the north and east of
that country, it was likely that they would be caught up in the
troubles and exposed to a genuine risk to life and limb. There were
no unambiguous signs of any amelioration of this civil disorder. We
are not persuaded that the voluntary repatriation programme organised
by the UNHCR was a clear indication of an appeasement in the general
situation in Sri Lanka, given the fact that this programme was not
initiated by the UNHCR, but was its response to the request of the Sri
Lankan and Indian Governments and was limited to the voluntary
repatriation of Tamils who were mostly in India. It did not include
the involuntary repatriation of Tamils from Western Europe. Indeed
the UNHCR had continuously urged that these people, including the
present applicants, should not be forced to return, a plea supported
by Amnesty International and other humanitarian organisations.
In our view, the cases of the fourth and fifth applicants were
particularly aggravated by sending them back to Sri Lanka without
their identity cards, thus making any travelling even more hazardous
because of the numerous security check points on the roads. We also
find the circumstances of the return of the fourth applicant further
aggravated by his young age (he was born in 1970).
Our opinion is further confirmed by the decision of the
independent adjudicator on 13 March 1989 in these cases. He had an
opportunity to hear the parties on the substantive issues of fact
(except for the third applicant's allegations, para. 70 above, which
were made afterwards) and largely believed the applicants' allegations
concerning events both before and after their return to Sri Lanka.
He concluded that the applicants had had a well-founded fear of
persecution and that they should have been entitled to political
asylum at the material time as conditions, in his view, had not
materially changed in Sri Lanka by February 1988.
Further dissenting opinion of Mrs. Liddy as regards
the issue under Article 13 of the Convention
Further to my dissenting opinion on the Article 3 issue in
these cases, I am also unable to agree with the opinion of the
majority of the Commission that Article 13 of the Convention has been
violated. My reason for this is that I share the Government's view
that judicial review alone, as recognised by the Court in its judgment
in the Soering case, can satisfy the requirements of Article 13 of the
Convention in cases where the decision challenged may involve a risk
to human life or treatment of the kind proscribed by Article 3.
Appendix I
HISTORY OF THE PROCEEDINGS BEFORE THE COMMISSION
Date Item
________________________________________________________________
26.08.87 Introduction and registration of
application nos. 13163/87, 13164/87
and 13165/87. Notice given of
applications to the respondent
Government by the Secretary to
the Commission.
16.12.87 Introduction and registration of
application nos. 13447/87 and
13448/87. Applicants' request for
an indication under Rule 36 of
the Rules of Procedure.
18.12.87 Commission's refusal of Rule 36
request.
Examination of admissibility
13.04.88 Commission's deliberations and
decision to invite the parties to
submit their written observations
on admissibility and merits.
31.08.88 Government's observations.
11.11.88 Legal aid granted in application
nos. 13164/87 and 13447/87 by
the President.
24.11.88 Applicants' reply to Government's
observations.
10.03.89 Consideration of the state of
proceedings
11.04.89 Commission's deliberations and
decision to hold a hearing.
Applications joined.
07.07.89 Hearing on admissibility and
merits, the parties being
represented as follows:
Government:
Mr. N. Parker, Government Agent
Mr. M. Baker )
Mr. J. Eadie ) Counsel
Mr. D. Seymour )
Mr. N. Sanderson ) Home Office
Applicants
Mr. D. Burgess ) Solicitors, Messrs.
Mr. C. Randall ) Winstanley-Burgess
Mr. N. Blake, Counsel.
07.07.89 Commission's deliberations and
decision to declare the applications
admissible.
Examination of the merits
07.07.89 Commission's deliberations on the
merits.
10.08.89 Parties invited to submit further
written observations on the merits.
08.09.89 Legal aid granted in application
nos. 13163/87, 13165/87 and 13448/87.
06.10.89 Government's observations.
11.10.89 Applicants' reply.
13.12.89 Commission's deliberations on the
merits.
08.05.90 Commission's deliberations on the
merits and final votes.
Adoption of Report.