AS TO THE ADMISSIBILITY

Application No. 13162/87

by V. P.

against the United Kingdom

        The European Commission of Human Rights sitting in private on

9 November 1987, the following members being present:

              MM. C. A. NØRGAARD, President

                  S. TRECHSEL

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A. S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  J. CAMPINOS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  F. MARTINEZ

             Mr.  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy 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 26 August 1987

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

26 August 1987 under file No. 13162/87;

        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 Sri Lanka, of Tamil racial

origin, born in 1963, who at the time of lodging his application was

detained at H.M. Detention Centre Latchmere, England, pending his

deportation from the United Kingdom back to Sri Lanka, and who has

in the meanwhile been returned to Sri Lanka.

        He is represented before the Commission by Messrs.  Winstanley-

Burgess, Solicitors, London.

        The facts of the case, as submitted by the applicant's

representatives, may be summarised as follows:

        The applicant's father is the Assistant Commissioner of the

Agricultural Service in Mullaittivu.  He was arrested twice in 1986.

First he was taken to the Elephant Pass army camp and detained for a

few hours of questioning.  Secondly, he was arrested in April by the

army and detained at the Mullaittivu army camp for two days.  His

jeep, which was given to him by the Agricultural Service for official

purposes, had been taken by Tamil militants.  He was released on the

return of the jeep.  The applicant states that it is possible that his

father had connections with the Tamil militants, but he does not have

any details of this activity.

        In September 1985, following a landmine explosion in Urella,

the applicant's village, the security forces rounded up the entire

village and arrested most of the young men.  A cooperative store owner

and his two sisters were killed.  The applicant went into hiding

during this period.  The security forces had moved into Vasavillan at

that time, about 3 1/4 miles from his house, and it became

increasingly difficult for young Tamil men to live in the area.

        After the news reached Jaffna of the massacres in Batticaloa

at the end of 1986, the applicant's father made arrangements for the

applicant to leave Sri Lanka.  He left Jaffna on 6 January 1987 by bus

to Colombo and stayed with his sister in Colombo until 20 January 1987.

        He paid an agent living in Colombo 50,000 rupees for an

airline ticket and a forged United Kingdom visa.  He did not know it

was a forgery until he was so informed by the Immigration authorities

at Heathrow airport.  He flew to Kuala Lumpur on 20 January 1987 where

he stayed with a friend until 12 February 1987 when the agent arranged

his departure for the United Kingdom via Bangladesh.  He was in Dhaka

airport for four hours, arriving in the United Kingdom on 13 February

1987, where he applied for political asylum.

        The applicant was interviewed twice by the United Kingdom

Immigration Service.  Once for 25 minutes on 13 February 1987 at

Heathrow and once for 25 minutes at Erlestoke House on 15 March 1987.

The questions asked were how he left Jaffna and Colombo, details about

the agents used, passport details, costs, family details, the

political affiliation of his father and himself, employment and study

prospects in Sri Lanka and his relations in the United Kingdom.

        It seems that the application for political asylum was refused

and the applicant's removal from the United Kingdom was ordered.  A

stay of removal directions was obtained from the Divisional Court in

London and on 24 February 1987 a full Divisional Court granted leave

to bring judicial review after a two day hearing.  On 2 March 1987 the

Home Office conceded that a fresh decision would be made and that

representations would be entertained and should be lodged by 18 March

1987.  The applicant was kept in detention throughout the proceedings.

        On 20 August 1987 the applicant was served with notice of the

Secretary of State's refusal of political asylum, the relevant part of

which reads 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

        reasons of race, religion, nationality, membership of a social

        group or political opinion.  When interviewed by the immigration

        officer you said that you were afraid to live in Sri Lanka

        because of the troubles and you feared arrest and detention.

        Although you personally had not been harassed or arrested your

        father had been arrested at the end of 1985 and detained for two

        days.  When UKIAS (the United Kingdom Immigrants Advisory Service)

        submitted Notices of Interviews their representatives had

        conducted with you, it was stated that your father had been

        arrested on two occasions in 1986, once for a few hours and once

        for two days.  It was further stated that the security forces had

        moved into Vasavillan about three and a quarter miles from your

        house and it became increasingly difficult for young Tamil men to

        live in the area.

        However it has been established after three further interviews

        that you left Sri Lanka in 1983 and travelled to Europe.  You

        claimed asylum first in West Germany and then in Switzerland but

        in both cases you left the country before a decision was reached

        on your asylum application.  You travelled to France and on

        11 June 1985 you were arrested in the company of five others for

        possession of 3.2 kilos consisting of heroin and other

        substances.  You were found guilty and sentenced to two years'

        imprisonment and (permanently banished?) from French territory.

        You were deported to Sri Lanka on your release from prison on or

        around 15 November 1985 (?).  You lived in Sri Lanka without

        incident before your departure to Kuala Lumpur and thence to the

        United Kingdom.  It is also relevant that you lived in Sri Lanka

        without incident prior to your departure to Europe in 1983.

        In conclusion you have not claimed to have personally

        suffered ill treatment, harassment or persecution in

        Sri Lanka and the Secretary of State having considered the

        individual circumstances of your case and in addition the

        situation in Sri Lanka has indicated that you have not

        established a well-founded fear of persecution in Sri Lanka.

        Even if the Secretary of State were of the opinion that you

        are a refugee you would be excluded from the benefit of the

        1951 United Nations Convention relating to the status of

        refugees as there are strong reasons for considering you have

        committed a serious non-political crime outside the United

        Kingdom before coming to this country, namely possession of

        heroin.  Since you do not otherwise qualify for leave 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 schedule 2

        of the 1971 Immigration Act."

        The applicant's representatives claim not to have been

notified of this refusal, but were informed by the media of the

applicant's imminent removal from the country, together with certain

other Sri Lankan Tamils.  On the afternoon of the refusal, the

assistant to the applicant's Member of Parliament requested the Home

Secretary's Office to defer removal so that the Member of Parliament

could make representations, so that legal aid could be sought for

judicial review and so that such a review application could be lodged

in the Divisional Court.  These requests were refused.

        An application for judicial review was nevertheless made to

the Divisional Court on 21 August 1987.  That application was refused.

The applicant then sought to exercise his right to renew his

application before the Court of Appeal, the Court of Appeal having

been warned during the course of the afternoon that it was likely that

the application would be made.  Unfortunately, late in the afternoon,

it became apparent that a full Court of Appeal could not be

constituted, it being the holiday period.  The Home Office refused to

agree to defer the removal (set for the evening of 22 August 1987)

until such a Court could be constituted during the course of the

following week.

        During the evening of 21 August 1987, the applicant's

representatives prepared a second application for judicial review,

this time of the Secretary of State's refusal to defer removal so that

a fully constituted Court of Appeal could hear the application for

leave.  This application was put before the duty judge at his home

late on the morning of 22 August 1987.  The application was adjourned;

the duty judge made an order staying the removal of the applicant.

The representatives took this order to Heathrow Airport following the

hearing, and the removal of the applicant was stayed.

        The renewed application for leave to move for judicial

review came before a fully constituted Court of Appeal at 11.00 hrs on

26 August 1987.  It was refused in the applicant's case and he was

returned to Sri Lanka on 28 August 1987.

COMPLAINTS

1.      The applicant's complaint is that he has been denied any

effective or independent review of the Secretary of State's decision

to refuse asylum.  The applicant refers to the view held by the Office

of the United Nations High Commissioner for Refugees (UNHCR) that it

is for a Government to recognise a refugee, it does not declare him

to be one.  Accordingly, a genuine refugee will not cease to be one

merely because the Government of the day declares him not to be such.

        The Executive Committee of the UNHCR's programme (28th

Session October 1977) issued certain requirements including one that

applicants for refugee status should have a reasonable time to appeal

against an adverse decision for a formal reconsideration of the

decision, either to the same or to a different authority, whether

administrative or judicial, according to the prevailing system.

        The Government has previously argued to the Home Affairs

Committee of the House of Commons that asylum applicants at the

airport did not need appeal rights since there are a number of

safeguards.  These safeguards were representations by Members of

Parliament, judicial review and the referral procedure organised by

UKIAS.  The Committee recommended the extension of appeal rights but

this extension was rejected by the Government on the basis that the

safeguards were satisfactory.  Since that time, the House of Lords has

limited its own jurisdiction in refugee cases to a supervisory one

only.  The courts will only intervene if there is evidence of gross

unreasonableness.

        The Government has declared in the House of Commons that

applicants can no longer expect to have their cases referred to

UKIAS.  The Government has also sought to limit Members of

Parliament's ability to intervene on behalf of asylum claimants and in

the present case the MP's right to intervene.

        In respect of this grievance the applicant invokes Article 3

of the Convention.

2.      The applicant also complains of a breach of Article 8 of the

Convention concerning an allegedly unjustified interference with his

right to respect for private life since he claims to have a genuine

and well-founded fear of persecution if returned to Sri Lanka.

3.      Finally the applicant complains of a breach of Article 6 of

the Convention for, if refugee status is a "civil right", there is no

possibility of a fair hearing by an independent and impartial tribunal.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced and registered on 26 August

1987.  It was lodged with three other Tamil cases (Applications

Nos. 13163/87, 13164/83 and 13165/87), accompanied by a request under

Rule 36 of the Commission's Rules of Procedure that the Commission

indicate to the respondent Government the desirability of a stay of

the removal measures until the Commission had had a chance to examine

the admissibility of the applicant's case.  The Acting President of

the Commission decided not to indicate any interim measures to the

parties.  The Deputy Secretary to the Commission informed the

respondent Government, pursuant to Rule 41 of the Rules of Procedure,

of the introduction of the application and of a summary of its

objects.

THE LAW

1.      The applicant has complained that the procedure for dealing

with his request for political asylum in the United Kingdom violated

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, according to the constant case-law of the Commission

and the Court, ill-treatment must attain a minimum level of severity

if it is to fall within the scope of Article 3 (Art. 3) (Eur. Court H.R.,

Ireland v.  United Kingdom judgment of 18 January 1978, Series A no. 25

para. 162).  The Commission finds that no severe ill-treatment has

been meted out to the applicant whilst in the United Kingdom and, in

particular, that the applicant has not been subjected to treatment

contrary to Article 3 (Art. 3) by virtue of the political asylum procedure,

however frustrating or disappointing the outcome of those procedures

may have been for him (cf. mutatis mutandis No. 7994/77 Kotälla v.

the Netherlands, Dec. 6.5.78, D.R. 14 p. 238).

        The Commission also refers to its constant case-law concerning

cases of political asylum:

        " ... even though the questions of extradition, expulsion and

        the right to asylum do not figure, as such, amongst those rights

        which govern the Convention, the Contracting States have

        none the less agreed to restrict the free exercise of their

        rights under general international law, including their right to

        control the entry and exit of foreigners, to the extent and

        within the limits of the obligations they have accepted under the

        Convention (cf. mutatis mutandis the decision of 30 June 1959 on

        the admissibility of application No. 434/58, Yearbook 2, p.

        373).  Consequently, the expulsion or extradition of an

        individual could, in certain exceptional cases, prove to be in

        breach of the Convention and particularly of Article 3 (Art. 3),

        whilst there are serious reasons to believe that he could be subjected

        to such treatment prohibited by the said Article 3 (Art. 3)

        in the State to which he must be sent."

        (No. 6315/73, X. v. the Federal Republic of Germany, Dec.

        30.9.74, D.R. 1 p. 73)

        The applicant has raised the question of his fear of

persecution if returned to Sri Lanka in the context of Article 8 (Art. 8)

of the Convention, which guarantees, inter alia, the right to respect for

private life, subject to certain limited exceptions.

        The Commission finds the applicant's reliance on Article 8

(Art. 8) of the Convention misplaced and has considered the substance of his

complaint in the light of Article 3 (Art. 3) of the Convention.

        The Commission notes the reasons for the Secretary of State's

refusal of the applicant's asylum request:  The applicant himself has

not suffered ill-treatment in Sri Lanka and nor have his family.  Even

though his father was arrested twice no allegation has been made that

he was ill-treated whilst detained.  The Commission also notes that

the applicant has not submitted any evidence to contradict the

Secretary of State's conclusions or in any other way substantiated his

claim that he is likely to face persecution on return to Sri Lanka.

        In the light of the above considerations, the Commission

concludes that the present case does not disclose any appearance of a

breach of Article 3 (Art. 3) of the Convention, either in respect of

the asylum procedures in the United Kingdom or in respect of the

alleged fear of persecution on return to Sri Lanka.  These aspects of

the application are, therefore, manifestly ill-founded within the

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

2.      The applicant has also complained of an absence of a fair

hearing by an independent and impartial tribunal, in accordance with

Article 6 para. 1 (Art. 6-1) of the Convention, as regards his request for

political asylum.  He suggests that the political asylum procedures in

the United Kingdom give rise to a determination of a civil right

within the meaning of this provision.

        However, the Commission has constantly held that the

procedures followed by public authorities to determine whether an

alien should be allowed to stay in a country or should be expelled are

of a discretionary, administrative nature, and do not involve the

determination of civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention (cf. e.g.  No. 7729/76, Agee v. the

United Kingdom, Dec. 17.12.86, D.R. 7 p. 164 and No. 8118/77,

Omkaranda and the Divine Light Zentrum v.  Switzerland, Dec. 19.3.81,

D.R. 25 p. 105). The Commission finds that political asylum

applications fall within this category of procedures which do not

determine civil rights within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention.  Accordingly the Commission must reject this

aspect of the application as being incompatible ratione materiae with

the provisions of the Convention, pursuant to Article 27 para. 2

(Art. 27-2).

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Deputy Secretary to the Commission     President of the Commission

             (J. RAYMOND)                      (C.A. NØRGAARD)