Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14543/89

by Viraj MENDIS

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 March 1989, 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

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

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 application introduced on 18 January

1989 by Viraj MENDIS against the United Kingdom and registered on

19 January 1989 under file No. 14543/89;

- ii -

14543/88

Having regard to:

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

the Commission;

- the Commission's decision of 20 January 1989 refusing the

applicant's request for an indication under Rule 36;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Sri Lanka, of the majority

Sinhalese ethnic origin. He was born in 1956 and was in detention in

the United Kingdom awaiting removal to Sri Lanka when he lodged his

application; on 20 January 1989 he was deported to Sri Lanka. He is

represented before the Commission by Messrs. Winstanlay-Burgess,

solicitors, London.

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

summarised as follows:

The applicant was admitted to the United Kingdom in 1973 as a

student, until October 1975. No further application was made for an

extension of his leave and the applicant remained unlawfully in the

United Kingdom. Inquiries as to his whereabouts remained unsuccessful

until May 1984 when the Greater Manchester Police traced him. At that

time he was unemployed, single and in receipt of unemployment benefit,

residing in a local authority flat. The applicant married a British

citizen on 25 July 1984. His solicitors requested the Home Office to

allow the applicant to remain on the basis of the marriage and the

applicant's claim that, although Sinhalese, he had openly opposed the

dealings of the ruling majority with the Tamil minority in Sri Lanka

and felt that he would be penalised because of this if returned to

that country. His opposition in the United Kingdom to the Sri Lankan

Government, expressed, for example, in two articles and participation

in two demonstrations, would have been reported by the Sri Lankan High

Commission staff.

The applicant and his wife were invited to attend an interview

on 29 October 1984, but only the applicant appeared. The couple had

separated and she declined to accompany him. At the interview the

applicant confirmed that he was of Sinhalese extraction and that his

parents lived untroubled with his brother and sister in Colombo. His

brother worked for Air-Lanka at Colombo airport; other relatives

lived near Colombo and he had no close relatives in the United

Kingdom. The applicant's studies had been financed by his father, but

when the applicant failed certain examinations his father could not

afford to pay for him to retake that academic year, so the applicant

had found work in a bakery. Since 1982 he had been living on public

funds. He had married for fear of deportation, although he said that

he had known his wife for a long time and would have married her

anyway. When the wife was interviewed in November 1984 she stated

that reconciliation was unlikely and that the marriage was one of

convenience to help the applicant avoid deportation.

The Secretary of State, after reviewing the circumstances of

the case, found that the applicant did not have a well-founded fear of

persecution because of his political opinions about Sri Lanka.

Accordingly the applicant was refused political asylum. The Home

Secretary also refused the applicant leave to remain on the basis of

his marriage. Notice of deportation was issued on 21 August 1985,

against which the applicant appealed to an Adjudicator.

On 14 February 1986 the Adjudicator dismissed the applicant's

appeal. He was satisfied that the applicant did not have a

well-founded fear of persecution if removed to Sri Lanka, particularly

in the light of an assurance provided by the High Commissioner for Sri

Lanka to the Minister of State on 4 June 1985 to the effect that the

applicant was not wanted in Sri Lanka for any offence, criminal or

otherwise, and that he would be free to go to Sri Lanka without any

impediment. The Adjudicator considered that the applicant's actions

in openly and publicly espousing the Tamil separatist cause was a

deliberate and cynical attempt to avoid deportation. On 16 July 1986

the Immigration Appeal Tribunal dismissed the applicant's further

appeal, concluding "that both the decisions of the Secretary of State

and the Adjudicator were reasonable, in accordance with the

immigration rules and involved no wrong exercise of discretion."

Further representations were then made by the applicant's

Member of Parliament to the Minister of State. However, he was unable

to persuade the Minister to change his mind and on 18 December 1986

the deportation order against the applicant was signed. On 20

December 1986 the applicant took refuge in a Manchester church and a

campaign to defend the applicant's stay in the United Kingdom was

organised. His case had the support of, inter alia, Amnesty

International, the World Council of Churches and the British Refugee

Council.

Judicial review of the earlier proceedings was refused by the

High Court on 27 July 1987 and by the Court of Appeal on 17 June 1988.

The House of Lords refused further leave to appeal on 21 December

1988. On 18 January 1989 the applicant was arrested with a view to

immediate deportation.

During the various court proceedings, the basis for the

applicant's asylum claim changed. In the end he claimed that his main

fear for his safety stemmed from the extreme Sinhalese terrorist and

insurrectionary force, the Janatha Vimukhei Peramuna (JVP), who might

attempt to assassinate him as a traitor to his race for being "soft

on" Tamils.

According to Professor Manor, an expert in Sri Lankan affairs,

the security and political situation in Sri Lanka has deteriorated

significantly since 1986, with around 670 political killings between 1

August 1987 and 15 October 1988. Professor Manor records that the JVP

presents a major threat to the Sri Lankan Government and to anyone

showing sympathy with the Tamil minority.

In a letter dated 18 January 1989, to the applicant's

representatives, the Home Office expressed the following views on the

case:

"At all times since the making of the deportation order

against Mr. Mendis the Home Secretary has kept closely in

touch with developments in Sri Lanka. He has seen many

press articles including those appended to your letters,

together with reports from organisations such as Amnesty

International, material put forward in support of individual

asylum applications and frequent situation reports from the

Foreign and Commonwealth Office. Moreover, he has on

several occasions since the making of the deportation order

considered representations from various organisations and

individuals on Mr. Mendis' behalf, in particular

representations from the Bishop of Manchester and Mr.

Litherland, MP. Few cases, if any, have received such

careful consideration over such a protracted period of time.

The Home Secretary takes the view that, while there is and

has been considerable civil unrest in Sri Lanka, it has at

no point been established that Mr. Mendis has a well-founded

fear of persecution there within the terms of the 1951

United Nations Convention. He has reviewed the case again

in the light of your letters, but has concluded that there

are no grounds for altering his decisions to refuse refugee

status and to make a deportation order against Mr. Mendis.

You have argued that 'the Secretary of State has seriously

misjudged the overall position in Sri Lanka, possibly as a

result of the poor advice he has received in this respect'.

The Home Secretary does not accept that this is so. His

initial decision was upheld by the applellate authorities

and reviewed by the Divisional Court and the Court of

Appeal, who concluded unanimously that there were no grounds

for quashing the decision. He is satisfied that he has full

and up to date information concerning recent developments in

Sri Lanka and has taken this information fully into account

in considering Mr. Mendis' case.

Your letter of 21 December refers to the opinions of

Professor James Manor, but the Home Secretary does not

accept his interpretation of the implications of

developments in Sri Lanka. In particular, the Home

Secretary does not accept Professor Manor's allegation in

the final enclosure to your letter that:

'the main source of terrorism on the island in

recent years has been the state, and not

insurgence from either community.'

The Home Secretary would point to the efforts of the Sri

Lankan Government to curtail the activities of both Tamil

militant groups and the JVP which, together with the calling

and conduct of the recent elections in Sri Lanka and the

ending of the state of emergency, provide firm indications

of the Government's determination to uphold the rule of law.

The Home Secretary has, of course, taken into account the

recently heightened activity of the JVP, who, in your view,

now pose the most significant threat to Mr. Mendis' safety.

He accepts that the rise of Sinhalese terrorism has added to

the dangers and uncertainties of life in Sri Lanka. But the

situation there is fluid and, for example, the period which

has seen a deterioration of security in the South has also

seen perceptible stabilisation in the North and East.

Having carefully considered your representations in this

matter, the Home Secretary does not consider that the

activity of the JVP provides a sufficient basis for a well

founded fear of persecution on the part of Mr. Mendis within

the terms of the 1951 Convention.

The other points you have raised relate to Mr. Mendis'

activity in this country before the decision to deport him

was taken, ... The question of his activities in this

country was dealt with very fully in the adjudicator's

determination.... Having heard all the evidence the

adjudicator concluded that the 'appellant's public and open

espousal of the separatist cause was nothing more than a

deliberate and cynical attempt on his part to place himself

in such a position that he could not be deported to Sri

Lanka'. Nothing in the material subsequently received has

caused the Home Secretary to regard this as an erroneous

assessment...

The Home Secretary has carefully considered, in the light of

all the information at his disposal and everything in your

letters, whether Mr. Mendis now has a well-founded fear of

persecution within the meaning of the 1951 Convention and has

concluded that there are no grounds for changing his original

decision. Accordingly, arrangements will now be made to

enforce the deportation order against Mr. Mendis who has now

been detained..."

The applicant did not take action to find an alternative

country of residence until shortly before his arrest. On 19 January

1989 the Freie Hansestadt Bremen, Germany, offered to take the

applicant within a few days once the necessary administrative

arrangements could be made. However, the Home Office were not fully

satisfied with such a proposal and refused to delay the applicant's

deportation further. He was returned to Sri Lanka on 20 January 1989.

COMPLAINTS

The applicant complains that his deportation to Sri Lanka put

him at risk of assassination by the JVP because of his known support

for the separatist demands of the Tamil minority. He thereby claims

to be a victim of a violation of Article 3 of the Convention. He

also complains of a breach of Article 13 of the Convention, there

being no right of appeal against the decision of the Home Secretary

contained in the Home Office letter of 18 January 1989. In this

respect reliance is placed on arguments put to the Commission in the

pending case of 5 Tamils against the United Kingdom (Nos. 13163/87,

13164/87, 13165/87, 13447/87 and 13448/87).

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 January 1989 and

registered on 19 January 1989. When lodging the application, the

applicant requested that the Commission indicate to the Government,

pursuant to Rule 36 of its Rules of Procedure, a stay in his

deportation to Sri Lanka.

On 19 January 1989 the Rapporteur, pursuant to Rule 40 para. 2

(a) of the Commission's Rules of Procedure, requested certain

information from the respondent Government, which was provided the

same day.

On 20 January 1989 the Commission declined to make the Rule 36

indication requested by the applicant.

THE LAW

1. The applicant has complained that his deportation to Sri Lanka

put him at risk of assassination by an extreme Sinhalese terrorist

organisation called the Janatha Vimukhei Peramuna (JVP). He thereby

claims that the United Kingdom Government have violated his rights

under Article 3 (Art. 3) of the Convention.

The Commission recalls its case-law that, whilst the

Convention does not guarantee a right, as such, to remain in a

particular country, a person's deportation where there are serious

reasons to believe that the individual will be subjected in the

receiving State to severe ill-treatment may give rise to an issue

under Article 3 (Art. 3) of the Convention which provides as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

However, it is only in exceptional circumstances that

deportation will give rise to an issue under this provision, and the

burden lies on the applicant to substantiate his fear that he will be

exposed to treatment or punishment falling under the Article (see No.

10308/83, Altun v. Federal Republic of Germany, Dec. 3.5.83, D.R. 36

pp. 209-235; No. 10078/82, M v. France, Dec. 13.12.84, D.R. 41 p. 103;

No. 10479/83, Kirkwood v. the United Kingdom, Dec. 12.3.84, D.R. 37

pp. 158-191 and No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).

It is not necessary to decide here the extents to which the

Commission, in examining a case of this kind under Article 3 (Art. 3) of the

Convention, may take into account an alleged danger arising, not from

the public authorities of the receiving State, but from autonomous

groups, because the Commission finds that the present case is anyway

manifestly ill-founded.

The Commission has examined the arguments and material

submitted by the applicant concerning his personal situation, security

in Sri Lanka and the terrorist activities of the JVP. However, it

finds no evidence to cast serious doubt on the conclusion of the

various British immigration authorities that the applicant's fear of

persecution is not well-founded. In particular, the Commission notes

that it cannot be said that law and order have completely broken down

in Sri Lanka, leaving civilians without any protection from terrorist

attack; the applicant has been offered a haven in Bremen, Germany.

In these circumstances the Commission concludes that the applicant's

complaint under Article 3 (Art. 3) of the Convention is manifestly ill-founded,

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant has also complained that he had no remedy under

United Kingdom law for the Home Secretary's final refusal of asylum on

18 January 1989. He has invoked Article 13 (Art. 13) of the Convention which

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."

However, the right under Article 13 (Art. 13) only extends to

Convention claims which are "arguable"; it does not require a remedy in

domestic law for any supposed grievance under the Convention, no matter how

unmeritorious (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,

Series A. No. 131, p. 23 para. 52). The Commission finds that the applicant's

claim under Article 3 (Art. 3) of the Convention is not "arguable", as is

reflected in the above decision to reject that aspect of the case as manifestly

ill-founded, de plano. Accordingly the present case discloses no issue under

Article 13 (Art. 13) of the Convention and the applicant's complaint concerning

this provision is also manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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MENDIS v. THE UNITED KINGDOM

MENDIS v. THE UNITED KINGDOM

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