Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14467/88

by P.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

11 March 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

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 15 May 1988

by P.S. against the United Kingdom and registered on

13 December 1988 under file No. 14467/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of India, born in 1960 and

temporarily resident in London. He is a Sikh. He is represented

before the Commission by Messrs. Singh and Choudry, solicitors,

London.

The facts of the case, as submitted by the applicant and which

may be deduced from official documents lodged with the application,

may be summarised as follows:

The applicant arrived in the United Kingdom by air from

Baghdad on 26 February 1985, travelling on an Indian passport. He had

been working in Iraq since 1981. He sought entry for two to four

weeks to visit a maternal uncle, after which he was to return to

India, prior to going to live in Canada. The applicant was

interviewed by an immigration officer, with the aid of an interpreter,

as he does not speak English.

According to a letter from the Minister of State, Home Office,

dated 17 May 1985, he had said that he intended to return to India for

a year to learn English. He had no job to go to, but would live on

his savings. His ambition was to settle outside that country. The

maternal uncle was contacted by the immigration service and had

difficulty remembering anything about the applicant and was surprised

to learn that he was to stay for four weeks. The immigration service

also noted that the applicant was unemployed and had no intention of

working again in India if possible. Factual discrepancies arose

during the applicant's interview with the immigration officer. In

these circumstances the immigration officer was not satisfied that the

applicant was genuinely seeking entry as a visitor and leave was

refused. He was, however, granted temporary admission. After two

months the Home Office took steps to remove him from the United

Kingdom.

On 23 May 1985 his solicitors, Messrs. Singh and Choudry,

applied for political asylum on his behalf on the grounds that the

applicant is a relative of a Dr. J.S. Chohan, the leader of the

separatist Sikh Khalistan movement and that the applicant himself is

involved in that movement. As a young Sikh (then 25 years of age) he

feared for his life if returned to India. Dr. Chohan averred that if

the applicant were returned to India he would be likely to be

arrested, interrogated and harassed because of his association with

him and his separatist movement. In making this statement Dr. Chohan

relied on the experience of what has happened to his other relatives

and close associates who have been arrested, interrogated and

tortured.

On 22 November 1985, asylum was refused. The Minister of

State informed the applicant's Member of Parliament of his decision in

the following terms:

"P.S. has an extensive family of half brothers

and sisters yet the closest and only relative actually in

detention (in India) is an uncle by marriage who was arrested

on an allegedly false charge of murder. He himself claims

that he is wanted in connection with a shooting that took

place in Amritsar in 1981 though he categorically denies

involvement in the incident. He does not appear to be of

interest to the authorities since he was readily released

on 7 September (1981) after being detained overnight for

enquiries, on his return to India from Iraq, along with

other Sikhs on the flight.

He alleges that the situation for Sikhs has deteriorated since

the assassination of Mrs. Ghandhi, yet he can hardly claim to

be likely to be singled out for persecution because of the

incident, as he himself has stated, and his passport confirms,

that he was not in India on the date in question.

He stated that neither he, nor his half brother or his

brother-in-law, both members (of) the Indian army, have

suffered persecution or harassment in any way. Irrespective

of when he claims to have joined the Khalistan Movement he

is adamant that he has never held any offical position in

that organisation.

I have carefully considered Mr. Singh's case in the light of

your representations and the further information obtained

at the second interview but I am not satisfied that he has

a well-founded fear of persecution. I am not therefore

prepared to alter my previous decision and the Immigration

Service will now contact Mr. Singh to advise him of this

decision and arrange for his removal from the United Kingdom."

The applicant originally submitted to the Commission Amnesty

International Reports from 1986 on the difficult conditions of

detention and proceedings against those Sikhs arrested under the

provisions of the Terrorist Affected Areas (Special Courts) Act and

the Terrorist and Disruptive Activities (Prevention) Act 1985, and in

particular those Sikhs detained since the Indian army's storming of

the Sikhs' Golden Temple in June 1984. This material had not been

before the Secretary of State at the material time and the High Court,

in refusing judicial review on 22 May 1987 because the Secretary of

State's decision could not be described as unreasonable, hinted that

the applicant should request the Secretary of State to review his

decision on the basis of the Amnesty Reports.

On 16 February 1988, the Court of Appeal dismissed the

applicant's appeal against the High Court's decision and it refused

leave to appeal to the House of Lords on 11 March 1988. The House of

Lords itself refused leave to appeal on 24 November 1988. The

applicant's removal from the United Kingdom back to India is imminent.

The applicant subsequently submitted to the Commission Amnesty

International Reports dated August and October 1988 reviewing human

rights violations in India and, in particular, the fate of 324 Sikhs

held without trial for more than four years since the storming of the

Golden Temple in Amritsar in June 1984. He has received letters from

his family describing their various fears about the turbulent

situation where they live. According to newspaper reports a fellow

Sikh was returned to Delhi and immediately arrested on the basis of

computerised information against him. The applicant's activities may

similarly be known, for there have been reports about the refusal of

his request for asylum in Punjabi newspapers. The applicant claims

that the Secretary of State has failed to take this and other relevant

material into account.

The applicant claims to fear for his life if he is returned

to India. This fear is aggravated by the existence of the National

Security Act 1980, which permits detention without charge or trial for

two years, by the Terrorist and Disruptive Activities (Prevention)

Act, the Terrorist Affected Areas (Special Courts) Act, section 1.1A

of the Indian Evidence Act (which places the burden of proof on the

accused) and amendments to the Indian Constitution suspending the

protection afforded to the right to life.

COMPLAINTS

The applicant complains of the refusal of political asylum in

the United Kingdom and claims to have a well-founded fear of

persecution if returned to India.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 May 1988 and registered

on 13 December 1988.

On 16 December 1988 the Commission refused the applicant's

request, under Rule 36 of its Rules of Procedure, to indicate to the

respondent Government a stay of the applicant's removal pending the

Commission's decision on admissibility.

THE LAW

The applicant has complained that the United Kingdom

Government have unjustifiably refused him political asylum and claims

that his imminent removal back to India will expose him to a serious

risk of persecution, because he is a Sikh closely associated with the

Sikh separatist Khalistan movement.

The Commission recalls its case-law that, whilst the

Convention does not guarantee a right, as such, to political asylum,

a person's removal to a country 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 such a

removal 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).

The Commission has examined the material which the applicant

has submitted concerning the protection of human rights in India with

particular regard to the Sikh community. It has also examined the

applicant's claims concerning his personal situation. However it

finds no evidence to cast serious doubt on the Secretary of State's

conclusion in November 1985 that the applicant's fear of persecution

is not well-founded. Given the applicant's absence from India since

1981, there is no evidence of any close association with the Khalistan

movement, or any involvement with Sikh terrorism, or any particular

interest in his case being shown by the Indian authorities. In these

circumstances the Commission concludes that the applicant's claims are

unsubstantiated and that the case discloses no appearance of a

violation of Article 3 (Art. 3) of the Convention. It follows that the

application is 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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SINGH v. THE UNITED KINGDOM

SINGH v. THE UNITED KINGDOM

LEXI