Lexploria

AS TO THE ADMISSIBILITY OF

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

The European Commission of Human Rights sitting in private on

7 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

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

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the first, second and third applications

introduced on 26 August 1987 by Nadarajah VILVARAJAH, Vaithialingam

SKANDARAJAH and Saravamuthu SIVAKUMARAN against the United Kingdom and

registered on 26 August 1987 under file Nos. 13163/87, 13164/87 and

13165/87;

Having regard to the fourth and fifth applications introduced

on 15 December 1987 by Vathanan NAVRATNASINGAM and Vinnasithamby

RASALINGAM against the United Kingdom and registered on 16 December

1987 under file Nos. 13447/87 and 13448/87;

Having regard to:

- reports provided for in Rule 40 of the Rules of Procedure of

the Commission;

- the Commission's decision of 18 December 1987 refusing

the applicants' requests under Rule 36;

- the Commission's decision of 13 April 1988 to bring the

applications to the notice of the respondent Government

and invite them to submit written observations on their

admissibility and merits;

- the observations submitted by the respondent Government

on 31 August 1988 and the observations in reply submitted

by the applicants on 24 November 1988;

- the Commission's decisions of 11 April 1989 to join the

applications and to invite the parties to a hearing on

admissibility and merits;

- the hearing of the parties on 7 July 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are citizens of Sri Lanka, of Tamil ethnic

origin. They are represented before the Commission by Messrs.

Winstanley-Burgess, Solicitors, London.

The facts of the cases, as submitted by the parties, may be

summarised as follows:

A. The particular facts of the cases

1. The first applicant

The first applicant 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.

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.

The first applicant states 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 LTTE,

and the navy personnel, who used the bus passengers as shields.

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.

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 political asylum in the United Kingdom.

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.

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 UN

Convention Relating to the Status of Refugees. 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."

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.

On 24 September 1987 McCowan J. 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 UN

Convention Relating to the Status of Refugees of 28 July 1951 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.

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

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."

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. After considering these

representations the Secretary of State concluded that they contained

no new information to justify a reversal of the removal decision.

Representations by the first applicant's Member of Parliament met with

a similar response.

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.

Since the first applicant's return to Sri Lanka an appeal has

been 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 states

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

PLOTE and the LTTE, which he denied. The police noted his address and

took his fingerprints.

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 Tamil

Tigers.

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 Tamil Tigers 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.

The first applicant recounts 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.

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 have been removed back

to Sri Lanka because of continued instability and fighting in northern

and eastern Sri Lanka between Tamil militants and the IPKF.

2. The second applicant

The second applicant was born in 1958. 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 comes from Jaffna in the north of Sri

Lanka, an area which had been controlled by Tamil separatists, the

Tamil Tigers, when he was living there. 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 Tamil Tigers, although he has never belonged to them.

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.

An agent, instructed by the second applicant's father,

arranged for his flight to an unknown destination. On 6 June 1987 he

travelled by scheduled service 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.

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.

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

claimed asylum. His removal was, therefore, postponed.

On 17 June 1987 he was interviewed about his asylum claim 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.

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 UN Convention Relating to the Status of Refugees.

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.

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."

Arrangements for his removal to Sri Lanka were made for

22 August 1987.

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 pp. 4-6 above).

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.

Since the second applicant's return to Sri Lanka an appeal has

been 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 a Tamil separatist group, the

LTTE, of which group 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.

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.

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.

The second applicant states that life in Colombo is very tense

for Tamils. A few weeks ago 25 boys were arrested for not having good

reason enough for being in the south. It is nerve-racking for the

second applicant having already been beaten and tortured by the Sri

Lankan army in Colombo. There is a constant danger of arbitrary

arrest and detention, particularly with denunciation by informers.

However the second applicant feels safer in Colombo than in Jaffna.

To justify his stay in Colombo he has registered as a student.

3. The third applicant

The third applicant 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 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.

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.

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.

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. Others were sent to an army camp.

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.

After these incidents, whenever they saw the security forces

approaching, the men would run away and go into hiding.

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.

The third applicant states that he was in the Tiger Movement

(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.

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.

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.

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.

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 in the Tamil Tiger movement. (He did not make this claim to

the British authorities until September 1987.)

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 UN Convention Relating to the Status of Refugees 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.

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.

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 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 tht 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."

Arrangements for his removal to Sri Lanka were made for

22 August 1987.

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 pp. 4-6 above).

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.

On returning to Sri Lanka the third applicant, according to

his father, was detained from 2 April until 11 July 1988. He then

spent some time out of that country. Although his present whereabouts

are undisclosed, he keeps in contact with his solicitors, who lodged

an appeal in the United Kingdom on his behalf against the refusal of

asylum.

4. The fourth applicant

The fourth applicant was born in 1970. At the time of lodging

his application he was temporarily resident in Ilford, Essex, whilst

awaiting his removal to Sri Lanka.

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.

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.

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 ordered everyone 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 has

granted political asylum.

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.

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.

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 claimed

asylum. Several pages of his passport had been removed. He was one

of the group of 64 Tamil asylum seekers.

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.

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 UN Convention Relating to the Status of Refugees 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.

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 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."

Arrangements for the fourth applicant's removal were made for

4 September 1987.

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 pp. 4-6 above).

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.

Since the fourth applicant's return to Sri Lanka an appeal has

been 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 since his

return he has stayed with a charitable family friend in Colombo

because no trace has been found of his family. He does not go out

unless escorted by a Singhalese speaker who could deal with any

trouble from the police. He has had many difficulties because he does

not have an identity card. (It had been lost by the Home Office

immigration service.) He cannot try to find his family because he

could not get through the many checkpoints. He is thereby trapped

outside his home area.

The fourth applicant stated that he was arrested without any

identity 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 the Tamils is very tense for they are subject to attack by

Singhalese. 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 has 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 cause much expense to his friend who has paid for

all necessary treatment and medicines.

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 Tamil separatists (the LTTE group)

and the IPKF several miles from his home village.

5. The fifth applicant

The fifth applicant was born in 1961. At the time of lodging

his application he was temporarily resident in Southall, Middlesex,

whilst awaiting his removal to Sri Lanka.

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. Two of his brothers were shot

dead by the army in 1986. At that time the fifth applicant was hiding

in the jungle otherwise 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 Singhalese majority. Many

people have been killed and buildings destroyed. There have been

rumours of massacres elsewhere.

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.

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.

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 UN Convention Relating to the

Status of Refugees. 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.

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."

Arrangements for the fifth applicant's removal to Sri Lanka

were made for 4 September 1987.

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 pp. 4-6 above).

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.

On returning to Sri Lanka the fifth applicant had difficulties

because, like the fourth applicant, he had no identity card. (It had

been lost by the Home Office immigration service.) He obtained a

forged card and managed to escape arrest during numerous police

searches. His brother joined the LTTE and the fifth applicant has had

money extorted out of him for this Tamil separatist cause. He has

apparently managed to leave that country again. Although his present

whereabouts are undisclosed, he keeps in contact with his solicitors,

who have lodged an appeal in the United Kingdom on his behalf against

the refusal of asylum.

6. The applicants' subsequent appeals in the

United Kingdom

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 none of the 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 Asian

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.

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 political 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.

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 challenges 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 due to be heard on 11 July 1989.

B. Relevant domestic law and practice

a) Appeal rights of an asylum seeker under the

Immigration Act 1971

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."

An application for asylum can be made by a person either on

arrival at a port in the United Kingdom or after he has entered 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."

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 ..."

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.

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.

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.

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 give 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 them. 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

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.

The courts will review the Home Secretary's powers to grant

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 exercised

his power unreasonably, absurdly, or even perversely, or without

thorough examination of the case before him.

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."

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."

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).

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 ..."

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."

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.

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

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.

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

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

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.

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).

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.

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.

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 applicant 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 from

numerous sources including press articles, journals and reports from

organisations directly concerned with the country in question. In

addition, 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 a visit paid to Sri Lanka by the then

Minister of State, Mr. David Waddington, in April 1987, and by the

current Minister of State, Mr. Timothy Renton, in September 1987.

COMPLAINTS

The applicants complain that their removal to Sri Lanka

constituted a breach of Articles 3 and 13 of the Convention. Reliance

is placed on the case of M.K. v. the United Kingdom (No. 9856/82, Dec.

14.5.87). The applicants contend, on the basis of that decision, that

"the removal of a person to a jurisdiction where he has reason to

dread treatment contrary to Article 3 of the Convention may give rise

to an issue engaging the responsibility of the removing State under

Article 3 of the Convention". They, as young male Tamils, had

reasonable grounds to fear persecution if returned to Sri Lanka, but

they had no effective remedies in the United Kingdom for their

complaint under Article 3. They claim thereby also to have been

victims of a breach of Article 13 of the Convention

PROCEEDINGS BEFORE THE COMMISSION

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 Commission's Rules of Procedure. (Application No. 13162/87

was declared inadmissible on 9 November 1987.)

Following the House of Lords' judgment of 16 December 1987 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 the

Commission.

After a preliminary examination of the cases by the

Rapporteur, the Commission considered the admissibility of the

applications on 13 April 1988. The Commission 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.

The Government lodged their observations on 31 August 1988,

after an extension of the time-limit fixed for their submission. The

applicant's 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.

On 10 March 1989 the Commission adjourned its examination of

the case 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.

The hearing was held on 7 July 1989. The Government were

represented by Mr. N.D. Parker, Foreign and Commonwealth Office,

Agent, Mr. M. Baker, Counsel, Mr. J. Eadie, Counsel, Mr. D. Seymour

and Mr. N. Sanderson, both of the Home Office. The applicants were

represented by Mr. N. Blake, Counsel, Mr. D. Burgess and Mr. C.

Randall, both solicitors with Messrs. Winstanley-Burgess, solicitors,

London.

THE LAW

The applicants have complained that their removal to Sri Lanka

in February 1988 by the United Kingdom Government was in violation of

Article 3 (Art. 3) of the Convention, in respect of which alleged

breach they claim to have no effective remedies, contrary to Article

13 (Art. 13) 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, pp. 18-19, of THE

FACTS above).

The Government contended that the applications were manifestly

ill-founded on the grounds, inter alia, that the applicants had not

substantiated their claim of a strong and substantial fear of ill-treatment

contrary to Article 3 (Art. 3) of the Convention at the material time in 1987.

The Secretary of State, whilst acknowledging the civil disorder in Sri Lanka,

did not consider that the applicants personally faced persecution. The

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 cannot

be verified by the Government and was irrelevant to consideration of the

Convention issues. Insofar as the United Kingdom's responsibility under the

Convention could be incurred at all, it was in respect of the removal decisions

only, based on an assessment of the general situation in Sri Lanka and the

applicants' personal circumstances in 1987. This assessment had not revealed

any real risk of persecution in the Government's view. The Government also

contended that, even if the applicants could be said to have an arguable claim

under Article 3 (Art. 3) of the Convention, the applicants had had effective

domestic remedies to test this claim, in particular by way of judicial review

of the Secretary of State's refusal of political asylum and the appeals to an

independent adjudicator under section 13 of the Immigration Act 1971 (cf. Eur.

Court H.R., Soering judgment of 7 July 1989, paras. 120-124).

Article 3 (Art. 3) of the Convention prohibits torture, inhuman and

degrading treatment or punishment. Article 13 (Art. 13) of the Convention

guarantees an effective remedy before a national authority for any breach of

the Convention.

The Commission considers, in the light of the parties' submissions,

that the five cases raise complex issues of law and fact under the Convention,

the determination of which should depend on an examination of the merits of the

applications as a whole. The Commission concludes, therefore, that the

applications are not manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission

DECLARES THE APPLICATIONS ADMISSIBLE

without prejudging the merits of the cases.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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VILVARAJAH ; SKANDARAJAH ; SIVAKUMARAN ; NAVRATNASINGAM ; RASALINGAM v. THE UNITED KINGDOM

VILVARAJAH ; SKANDARAJAH ; SIVAKUMARAN ; NAVRATNASINGAM ; RASALINGAM v. THE UNITED KINGDOM