K. v. THE UNITED KINGDOM
Doc ref: 9856/82 • ECHR ID: 001-508
Document date: May 13, 1987
- Inbound citations: 4
- •
- Cited paragraphs: 0
- •
- Outbound citations: 10
AS TO THE ADMISSIBILITY
Application No. 9856/82
by N.K.
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 May 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
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 17 May 1982 by
N.K. against the United Kingdom and registered on 18 May 1982 under file
No. 9856/82;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having regard to:
- the Commission's decision of 8 December 1984 to adjourn its
examination of the application pending the conclusion of
domestic proceedings or the applicant's imminent deportation;
- the applicant's further submissions of 22 August 1985;
- the Commission's decision of 18 October 1985 to communicate
the application to the respondent Government and request them
to submit written observations on its admissiblity and merits;
- the respondent Government's letter of 11 February 1986 and the
applicant's comments thereon of 5 March 1986;
- the Commission's decision of 13 March 1986 again to request
observations in writing on the admissibsility and merits of
the application;
- the observations of the respondent Government on the
admissiblity only of the application dated 11 June 1986 and
the applicant's submissions in reply dated 4 July 1986;
- the exchange of correspondence between the parties summarised
to the Commission in the respondent Government's letter of
3 December 1986 and the applicant's representative's letter of
29 January 1987;
- the further report prepared under Rule 40 and presented to
the Commission on 11 December 1986 and the Commission's
deliberations thereon;
Having deliberated;
Decides as follows:
THE FACTS
The facts as they have been submitted on behalf of the
applicant, a Sri Lankan citizen born in 1959, and a student, currently
living in England, by Sir James Fawcett QC and Dr. R. Plender,
instructed by the United Kingdom Immigrants Advisory Service of London
WC2, may be summarised as follows:
The applicant is a Tamil who was given leave to enter the
United Kingdom as a student on 9 September 1977. The permission was
granted for one year, and the applicant was sponsored by his brother
who was resident in the United Kingdom. The permission was extended,
subject to a continuing condition prohibiting the applicant from
taking employment until September 1979.
The applicant became estranged from his brother, who ceased to
support him. He took employment to support himself, and in May 1979
was convicted before the Ealing Magistrates for breaching a condition
of his leave to enter the United Kingdom, contrary to Section 24
(1)(b)(ii) of the Immigration Act 1971 ("the 1971 Act"), and fined £50.
The applicant applied for a further extension of his leave to
remain in the United Kingdom, which application was refused on 8
August 1980. The applicant appealed against this refusal, but did not
attend that appeal, which was dismissed on 2 September 1981. The
applicant anticipated that the outcome of the hearing would be
unfavourable to him, and feared being returned to Sri Lanka. From the
date of the dismissal of his appeal the applicant became liable to
deportation as an overstayer.
On 27 January 1982 the applicant was arrested and charged with
remaining in the United Kingdom beyond the time permitted by his
leave, contrary to Section 24 (1)(b)(i) of the 1971 Act. On
19 February 1982 he was convicted by Camberwell Green Magistrates'
Court of this offence, and fined £70, with an alternative of 14 days
imprisonment, with the recommendation of his deportation from the
United Kingdom. The applicant was unable to pay the fine and
therefore served the period of imprisonment. He continued to be
detained thereafter, pending the making of a deportation order in
accordance with paragraph 2 (1) of Schedule 3 to the 1971 Act. He
appealed against the recommendation that he be deported but, on 24
March 1982, he withdrew that appeal.
On 24 February 1982 the applicant's then solicitors wrote to
the Home Office stating that he wished to apply for political asylum.
On 16 March 1982 the applicant was interviewed at Ashford Remand
Centre in connection with his asylum application. On 20 April 1982
the Home Office replied that a deportation order had been made against
the applicant on 15 April 1982. The reply did not refer to the
applicant's request for asylum. Before receiving the Home Office's
reply, the applicant's solicitors wrote a letter drafted by counsel on
16 April 1982 to the Home Office setting out the basis of the
applicant's claim for asylum. This letter referred to the outbreak of
serious communal violence in Sri Lanka in July and August 1981, the
declaration of a state of emergency on 17 August 1981 and a report
dated 20 September 1981 concerning the holding of Tamils
incommunicado.
The same letter set out the applicant's activities in the
United Kingdom on behalf of Tamil separatists. The applicant had been
involved, since his arrival in the United Kingdom, with the political
question of the situation of Tamils in Sri Lanka. This political
activity had continued after the commencement of the communal violence
in Sri Lanka. The applicant was closely concerned with a leader of
the separatist movement who had apparently received asylum. The
applicant had distributed leaflets at the Sri Lankan High Commission
and elsewhere, had picketed a Sri Lankan exhibition at the
Commonwealth Institute, and had attended meetings at which the idea of
a separate Tamil State was discussed. He considered it inconceivable
that the Sri Lankan authorities might be ignorant of his activities
and possible that they would torture him on his return.
By further letter of 22 April 1982 the applicant's then
solicitors asked the Home Office to reconsider the decision to deport
the applicant in view of the contents of their letter of 16 April
1982. The Home Office replied on 27 April 1982 stating that the
applicant had failed to satisfy the Secretary of State that he had a
well-founded fear of individual persecution on the grounds of his
political opinions. The letter noted that there were nearly three
million Tamils in Sri Lanka, many of whom occupied positions of
authority, and that for the most part the Tamil and Sinhalese
communities lived peaceably together. The letter also recorded that
the main political parliamentary opposition party was the Tamil United
Liberation Front (TULF) and that political involvement with the TULF
would not constitute the basis for a valid claim to asylum in the
United Kingdom, in view of the fact that the TULF was the officially
recognised parliamentary opposition party in Sri Lanka.
The applicant points out that he had not contended that he was
a member of the TULF, or involved with it.
On 27 April 1982 notice of the Secretary of State's decision
to deport the applicant, together with directions for his removal to
Sri Lanka were served on him in detention. He immediately appealed
against the direction that he be removed to Sri Lanka. On 6 September
1982 the applicant was released from custody on bail in accordance
with paragraph 29 of Schedule 2 to the 1971 Act, and remained on
bail in accordance with that provision until the revocation of the
deportation order on 10 February 1986.
On 14 July 1982 the Adjudicator dismissed the applicant's
appeal against the making of directions for removal to Sri Lanka,
finding that it was not open to the applicant to contend in the appeal
that he ought not to be removed to Sri Lanka, because he feared
persecution there. The Adjudicator held, on the basis of Section 17
(1) of the 1971 Act, that the applicant's destination appeal could
succeed only if he could show that there was a country or territory,
other than Sri Lanka, to which he could and should be removed.
On 24 September 1982 the General Union of Eelam Students
certified that the applicant was a member of that organisation and an
active participant in its activities. The applicant appealed from the
Adjudicator to the Immigration Appeal Tribunal, which dismissed his
appeal on 18 November 1982. The applicant applied for judicial
review of the Tribunal's determination, contending that the scope of a
destination appeal included the opportunity to appeal against a
destination on the grounds of a fear of prsecution at that
destination.
On 14 October 1983 the High Court rejected the applicant's
application for judicial review. The judge held that it would be
highly desirable if it were possible to construe the 1971 Act in such
a way as to give persons in the position of the applicant a right to
raise their claim to asylum before the appellate authorities. The
judge held that such a result would:
"certainly lead to a situation where it could clearly
be seen that this country, in relation to its appellate
code for dealing with immigrants, was observing its
international obligations (under the Geneva Convention
and New York Protocol relating to the Status of
Refugees and under the European Convention on Human
Rights) and, what is more, it would enable a matter of
very considerable importance in the world today to
be properly considered by an independent body, which
would result, in my view, in a situation which could
accord with what those responsible for the administration
of immigration legislation would like to see".
Nevertheless, he concluded that the clear language of the 1971 Act
precluded such an opportunity.
The applicant appealed from this decision to the Court of
Appeal, which dismissed the appeal on 16 July 1984. The Court found
the terms of the 1971 Act unambiguous and therefore declined to
determine whether the 1971 Act was inconsistent with the Convention
Relating to the Status of Refugees or the European Convention on Human
Rights, since those instruments would be relevant only as an aid to
the interpretation of the statute if it were ambiguous.
The applicant sought leave to appeal to the House of Lords,
but on 8 November 1984 the judicial committee of the House of Lords
refused leave to appeal. Under normal circumstances, on the completion
of the appeal process under domestic law, the applicant would have
become liable to actual deportation following the judicial committee's
decision of 8 November 1984. However, the respondent Government have
stated that, in view of a review of their policy, no Tamils who
expressed fear of persecution in Sri Lanka were being removed there
from the United Kingdom even if their applications for political
asylum had been refused. As a result of this policy review on 20 May
1985 the Government announced the granting of exceptional leave to
remain for six months for Tamils in these circumstances.
The applicant did not apply for such leave but it was granted
to him on 10 February 1986 and the deportation order made on 15 April
1982 was revoked. Subsequently the applicant has been granted a
further period of exceptional leave for twelve months, expiring on
10 August 1987.
The applicant's summary of the political situation in Sri Lanka
The applicant has made detailed submissions relating to the
situation of Tamils in Sri Lanka, drawing upon various reports,
including the report of the International Commission of Jurists
"Ethnic Conflict and Violence in Sri Lanka" published in 1981, and
the subsequent report by the same body "Sri Lanka, A Mounting
Tragedy of Errors" published in March 1984, the Report of the United
States Department of State on Human Rights Practices for 1983,
published in 1984 and the summary statement of Amnesty International's
current human rights concerns in Sri Lanka dated January 1984.
Reference is also made to the conclusions of the Berlin Administrative
Court in a decision of 19 April 1984, a report of the Swiss Federal
Police and to reports in the national and international press. These
reports may be summarised as indicating a mounting pattern of civil
unrest and disturbance. This is traced from the election of the Sri
Lanka Freedom Party in 1970, which implemented various measures which
advanced the position of the Sinhalese population. During this
administration's tenure from 1970 to 1977 the new constitution, of
1972, came into force, which designated Sinhalese as the country's
official language. A quota system on the basis of race was imposed to
regulate admissions to Sri Lanka, and Buddhism (the religion of the
Sinhalese majority) was recognised as the official religion. A number
of Tamils who had recently emigrated from India to Sri Lanka at the
time of independence (in 1948) were not granted citizenship of what
was then Ceylon, and the Tamils' representation in the legislature was
accordingly reduced. The principal Tamil political party, the TULF,
adopted a policy of separation of the Tamil areas from Sri Lanka and
the creation of a separate State of Tamil Eelam, whilst denouncing the
use of force.
A further response to the legislative measures and
intermittent communal violence between the Sinhalese and Tamil
populations was the banding together in 1977 of certain disaffected
Tamil youths in a group called the Liberation Tigers of Tamil Eelam,
explicitly committed to the establishment of a separate State by armed
force. Other, similar groups have subsequently been formed under
different names and these groups are together collectively referred to
as the Tamil Tigers.
Communal violence arose in August and September 1977 following
the election of the present United National Party Government.
However, it was four years later, in August 1981, that by far the most
serious outbreak of communal violence arose, which led to the
declaration of a state of emergency on 14 August 1981. As a result of
these disturbances at least ten Tamils had been killed, numerous Tamil
shops and business burned and more than 5,000 Tamils had fled to
refugee camps according to the report of the International Commission
of Jurists referred to above. It was within six months of these
events that the applicant applied for asylum in the United Kingdom,
which application was rejected on the basis that the Tamil and
Sinhalese populations in Sri Lanka were living essentially
harmoniously together.
Further, extreme, communal violence occurred between 24 July
and 2 August 1983. A state of emergency was declared on 18 May 1983,
and was prolonged on 18 July 1983. On 23 July 1983 13 soldiers were
killed in an ambush by Tamil extremists, in reprisal for which members
of the army went on the rampage and killed 51 civilians in Jaffna.
On the following day, following the funeral of the 13 soldiers,
Sinhalese riots against Tamils broke out in several parts of the
country involving killings, assaults, arson and looting. In response,
the Government imposed a curfew in Colombo and in the Northern
Province on 25 July 1983, and declared the following day a national
holiday. It also announced the imposition of the death penalty for
looting and arson.
On 25 July 1983 37 Tamil prisoners were killed by Sinhalese
co-prisoners in the high security Welikad Prison in Colombo. Two days
later 17 more Tamil prisoners were killed in the same prison before
the security forces intervened. The rioting extended to the cities of
Kandy, Gampola and Trincomalee, where a group of 130 naval personnel
went on the rampage, burning 175 Tamil houses, killing one Tamil and
wounding ten others before returning to their barracks.
On 28 July 1983 the President announced the withdrawal of the
civil rights of representatives of the separatist movement. The
overall extent of the damage resulting from the communal violence was
considerable: according to official statements 371 people were killed,
18,000 houses, 1,100 stores and other buildings were destroyed by
arson and 100,000 persons were rendered homeless. On 25 August 1983
the German Embassy reported that 1,500 people had been killed and more
than 2,300 stores and small workshops were destroyed. Forty thousand
people fled to the Tamil areas in the north of the island. Tamil
sources report 2,000 killed and estimate the number of refugees at
150,000.
The applicant points out that it was at the time of these
disturbances that the Immigration Appeal Tribunal held that it was not
open to the applicant to claim before the courts, as a matter of
English law, that he had a well-founded fear of persecution in Sri
Lanka, and should therefore not be removed there.
The Sri Lankan Government have stated that during the first
few days of these disturbances the security forces did not intervene
with sufficient energy and that some members of the security forces
participated in the riots.
Relations between the population of Jaffna, the principal
concentration of the Tamil population, and the security forces
seriously deteriorated following the widespread burning of the market
area of the town on the nights of 31 May and 1 June 1981. Since that
time there has been a massive deployment of the army on the Jaffna
peninsula in an attempt to curtail the terrorist activities of the Tamil
Tigers. The problem has been accentuated by the fact that the great
majority of both the police and army are Sinhalese who understand
neither the language nor the culture of the Tamils.
The Sri Lankan Government's own admissions reveal that during
this period of disturbances a total of at least 90 individuals were
killed either by members of the State's own security forces or while
in the State's custody. The state of emergency proclaimed on 18 May
1983 for the stated purpose of preventing violence during
Parliamentary by-elections is still in force.
According to a report of Amnesty International, published in
December 1984, during the months of August, September and October 1984
several hundred Tamils were taken into army camps for questioning and
were detained. There are widespread reports of arbitrary arrest and
detention, including the arrest and subsequent detention of the entire
young male population of the village of Valvettiturai amounting to
some 500 young men, of whom 350 were officially acknowledged to still
be detained some three weeks later.
According to a recent report of the Swiss Federal Office of
Police the wholesale arrest and detention in military bases of males
aged 16 to 30 constitutes part of the policy of the Sri Lankan
security forces against terrorism. The same report expressed the view
that the security forces are pursuing a policy of reprisals against
civilians in areas in which Tamil extremists have shown themselves to
be operating. The report expressly concludes that it appeared that
the security forces, and in particular the army, cannot always be kept
under control.
According to international press reports on 13 August and 6
September 1984, official sources confirmed that troops went on the
rampage in Mannar on 11 and 12 August 1984 killing five civilians.
During the last few months of 1984 there were further reports
on attacks of members of the security forces, which gave rise to the
announcement on 29 November 1984 by the Minister of National Security
of the establishment of a "no man's land" extending 100 yards inland
and 100 yards into the sea along an area stretching from Mannar on the
north-west coast to Mullaittiavu on the north-east coast of the
island. The Jaffna district was also declared a security zone with a
curfew from 4 pm. to 6 am. within which no one was allowed to own or
use private vehicles or bicycles without special police permission and
where householders would be required to submit the names of those
staying in their houses to the police. The Minister also announced
the introduction of the concept of "collective responsibility"
throughout the island, wherever explosions took place or where
explosives were found. All persons living in such an area would be
liable to resettlement in another area, according to a report
published in The Times on 30 November 1984.
On 2 December 1984 the curfew was extended to five other
coastal areas following attacks by Tamil guerrillas on two fishing
villages and has subsequently been imposed in other Tamil centres. On
10 December 1984 the security zone was extended to cover both the
eastern and western coastlines, extending for a distance of some 150
miles.
The Minister for National Security declared in early October
1984 that repatriated Tamils would, if necessary, be arrested at
Colombo Airport. The Swiss Government report confirms that the same
procedure of arrest and detention which was applied to Tamils within
the country applied to Tamils returning from abroad. Amnesty
International reported on 24 May 1985 that a young man deported from
Switzerland after seeking asylum there, which was refused, was
arrested on 3 October 1983 and detained without trial until 14
December 1984.
The Government of Sri Lanka have taken extraordinary powers to
deal with advocates of independence in Tamil regions, by the sixth
amendment to the Constitution which came into effect on 8 August 1983.
The amendment imposes severe penalties for any person who directly or
indirectly supports or otherwise assists or advocates the
establishment of a separate State within the territory of Sri Lanka.
Since the TULF was committed by its party conference resolution of
1976 to the establishment of an independent Tamil State, the immediate
consequence of this amendment to the Constitution was that all TULF
members of Parliament had to forfeit their seats. The circumstances
are to be contrasted with the statement of the Home Office in its
letter of 27 May 1982 to the applicant's then solicitors that the TULF
was the officially recognised opposition party in Sri Lanka.
Further, the Prevention of Terrorism (Temporary Provisions)
Act was amended in 1982 and currently remains in force indefinitely.
It provides the police with the power inter alia to order
detention "anywhere and subject to any conditions, for periods up to 18
months (renewable every three months)" of anyone who is "reasonably
suspected of being connected with or concerned in any unlawful
activity". The Act also provides for entry, search and seizure
powers, prohibition orders concerning place of residence, employment
or travel and other activities for a period of up to 18 months and
restrictions on access to visits by the family and by lawyers.
Furthermore, emergency rule is carried on under the
Emergency (Miscellaneous Provisions and Powers) Regulations made
under the Public Security Ordinance. The current state of emergency,
which has been in force since 18 May 1983, allows the executive power
to arrest and detain indefinitely, without charge or judicial review,
those whom the Secretary to the Minister of Defence believes may act
in a manner prejudicial to national security. Several members of the
United Nations' Human Rights Committee expressed concerns with various
aspects of the Prevention of Terrorism Act and the Emergency
Regulations during consideration of Sri Lanka's first report under the
International Covenant on Civil and Political Rights in August 1983.
The law and practice of the United Kingdom as summarised by the
applicant's representatives
Entry into the United Kingdom and the terms and conditions on
which persons who are not British citizens may remain there are governed
by the 1971 Act, together with the Rules made by the Secretary of
State as to the practice to be followed in the implementation of the
1971 Act. Section 4 of the 1971 Act gives the power to grant or
refuse leave to enter the United Kingdom to immigration officers, and
the power to give and vary leave to remain to the Home Secretary, and
the officials in the Home Office. Section 12 of the 1971 Act provides
for adjudicators and the Immigration Appeal Tribunal which are
competent in certain specified circumstances to entertain appeals
against the refusal to grant leave to enter the United Kingdom (under
Section 13), or against the refusal to vary conditions of admission
(Section 14), or against the making of deportation orders (Section
15), or against the validity or content of directions for the removal
of persons from the United Kingdom (Sections 16 and 17). An appeal is
to be allowed by an adjudicator (or on further appeal by the
Immigration Appeal Tribunal) if the appellant establishes that the
contested decision was not in accordance with the law or with any
immigration rule applicable to the case, or that it involved the
exercise of a discretion which should have been exercised differently
(Section 19).
There are three distinct procedures established under the 1971
Act whereby a person subject to immigration control may be expelled
from the United Kingdom. The first is by means of a deportation order
under Section 3 (5). Such an order may be made in respect of someone
who overstays the time-limit initially imposed, or otherwise breaks a
condition attached to his leave to remain. The second procedure is by
means of a deportation order under Section 6 (3), following the
recommendation of a court before which the person concerned has been
convicted of an offence punishable with imprisonment.
The third procedure is by means of summary removal under
paragraphs 8 and 9 of Schedule 2 of the 1971 Act, which authorise the
removal of persons refused leave to enter and illegal entrants, which
second category includes anyone who has entered the United Kingdom in
breach of the immigration laws (Section 33).
Section 24 makes it an offence, punishable with imprisonment,
for a person subject to immigration control to enter the United
Kingdom without leave, or to remain in the United Kingdom beyond the
time limited by the leave, or to fail to observe a condition of the
leave. Thus a person who fails to observe a condition of his leave to
enter the United Kingdom may be deported in accordance with Section
3 (5) of the 1971 Act, without the intervention of any criminal court;
alternatively, he may be prosecuted under Section 24 of the 1971 Act,
recommended for deportation and then deported in accordance with
Section 3 (6). There is a right of appeal against a decision to make a
deportation order under Section 3 (5), but no such right in respect of
a deportation order under Section 3 (6).
Under the relevant provisions which applied at the time of the
applicant's entry into the United Kingdom, his entry was permitted
under paragraph 18 of the Statement of Immigration Rules for Control
and Entry: Commonwealth Citizens, HC 79, 25 January 1973, paragraph
18. When the applicant applied for a further extension of his leave
to remain in the United Kingdom his position was governed by,
inter alia, paragraphs 87, 88 and 120 of the Statement of Changes
in Immigration Rules, HC 394, 20 February 1980. Paragraph 88 provided
that, in order to qualify for extension of leave to remain as a
student, an applicant should produce evidence that he is able to
maintain and accommodate himself without working. It appears to have
been under this provision that the applicant's request for an
extension of his leave to remain in the United Kingdom was refused on
8 August 1980.
Paragraph 87 of the same rules provides that where a person is
a refugee, full account should be taken of the Convention and Protocol
Relating to the Status of Refugees, and paragraph 120 provided:
"A person may apply for asylum in the United Kingdom on the
ground that, if he were required to leave, he would have
to go to a country to which he is unwilling to go owing
to well-founded fears of being persecuted for reasons of
race, religion, nationality, membership of a particular
social group or political opinion ... "
It would therefore have been open to the applicant on that date to
apply for asylum, but, in view of the prevailing situation in Sri
Lanka at that time (prior to the eruption of violence against Tamils
in August 1981), such an application would have been unlikely to be
successful.
On 19 February 1982, when the applicant was convicted for
remaining in the United Kingdom beyond the time permitted by his
leave, he was recommended for deportation, at which time paragraph 150
of the same rules referred to above applied. This stated that a
deportation order would not be made in circumstances where an
applicant could apply for asylum in the terms set out in paragraph 120
(above). However, the Magistrates before whom his case came were not
under a duty to consider the application of paragraph 150, in view of
the principle established in Ali v. Immigration Appeal Tribunal
(<1973> Imm AR 33 at 35) where the then Master of the Rolls stated:
"In all these cases the proper person to consider a claim
to political asylum is the Home Secretary. It is not a
matter for the court which recommends deportation."
Accordingly, although the applicant could appeal against the
recommendation for deportation, it was not open to him to raise a
claim to political asylum in the course of that appeal. This was
confirmed by the decision of the Court of Appeal in R v. Nazari(<1980>
3 All ER 880 at 885 - 886) which held that:
"[T]he 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 ... it is for the Home Secretary
to decide in each case whether an offender's return to his
country of origin would make his compulsory return unduly
harsh ... The sort of argument which was put up in Nazari's
case was one which we did not find attractive. It may well
be that the regime in Iran at the present time is unlikely
to be favourable from his point of view ...
The final decision is for the Secretary of State. No doubt
he will take into account the personal circumstances
of each person whose case he is considering, and that
will include the political situation in the country to
which he will have to go if an order of deportation is
made. These are matters solely for the Secretary of State
and not for the court".
The applicant therefore abandoned his appeal against the
recommendation that he be deported. When on 24 February 1982 the
applicant wrote to the Home Secretary asking for asylum, paragraph 150
of HC 394 applied. However, the applicant had no right or opportunity
to appeal against the Home Secretary's decision since the deportation
order made against him was made on the basis of Section 3 (6) of the
1971 Act. Although Section 15 (1)(a) thereof provides for a right of
appeal against a decision to make a deportation order under Section
3 (5) of the 1971 Act, in the applicant's case the Secretary of State
chose not to use the procedure created by Section 3 (5), but to use
instead the alternative procedure whereunder the applicant had no
right of appeal.
On 27 April 1982 when directions for the applicant's removal
to Sri Lanka were served upon him, it was therefore not open to the
applicant to rely on paragraph 150 HC 394 when appealing against those
directions. Section 17 of the 1971 Act provides that where directions
are given for a person's removal from the United Kingdom, following
the making of a deportation order, "he may appeal against the
directions on the grounds that he ought to be removed (if at all) to a
different country or territory specified by him". As the Court of
Appeal held in the present case, these words mean that there shall be
an appeal as to the choice of destination, but that that appeal is
without prejudice to the issue of whether there should be a
deportation at all.
On 20 May 1985 the Home Secretary announced in Parliament a
new policy to deal with Tamils seeking asylum in the United Kingdom.
Any Sri Lankan Tamil who failed to qualify for leave to enter or
remain under the Immigration Rules, but expressed a fear of returning
to Sri Lanka was granted leave to remain on an exceptional basis if
there was reason to believe that he would suffer severe hardship if
returned to Sri Lanka. Those who had been in the United Kingdom for
six months and whose departure had not been enforced would be granted
leave to remain for six months, whereupon their cases would be
reviewed on the basis of the new policy. Others would be granted 12
months' exceptional leave. On 30 May 1985 the Immigration Rules were
varied so that Sri Lankans could enter the United Kingdom only with
visas. On 4 June 1985 the Home Office, in implementation of the new
policy, returned a Tamil to the Jaffna province of Sri Lanka. The
Home Secretary stated in Parliament that this deportation was as a
result of a serious failure of communication by officials, since
refugee agencies were not first given an opportunity to make
representations on his behalf.
COMPLAINTS
The applicant first complains that the decision of the Home
Secretary dated 15 April 1982 to direct that he be removed to Sri
Lanka, together with the connected facts and circumstances, including
the applicant's imprisonment, amount to a violation of Article 3 of the
Convention, since the applicant was liable to be subjected to torture
and serious ill-treatment in Sri Lanka if returned there.
Secondly the applicant maintains that the United Kingdom acted
in breach of its obligations under the Convention in failing to afford
him an effective remedy before a national authority against the Home
Secretary's refusal to grant him asylum and against the decision to
direct that he should be returned to Sri Lanka. The applicant submits
that this breach was made manifest in the decision of the adjudicator
to refuse to consider, during the course of the applicant's appeal
against the making of the directions for his removal to Sri Lanka, the
strength of the applicant's claim that he would be subjected to
torture or inhuman or degrading treatment if returned to Sri Lanka.
With regard to Article 3 of the Convention
The applicant contends that Article 3 of the Convention prohibits
the compulsory return of an asylum seeker to a country in which there
are serious reasons for believing that he will be subjected to
treatment in violation of that provision. It also prohibits the
practice of detaining such an asylum seeker in prison, for breach of
immigration law only, denying him asylum without the right to any
effective remedy against that decision, and exposing him to continuing
fear that he may at any time be returned forcibly to a country in
which there are serious reasons for believing that he will be
persecuted.
The applicant refers in this respect to the case-law of the
Commission as well as to a variety of instruments adopted within
the Council of Europe in relation to refugees including 11
Recommendations, two Resolutions and the Declaration on Territorial
Asylum of 17 November 1977.
The Commission's case-law supports his contention in a series
of decisions commencing with that in Application No. 984/61, X. v.
Belgium, Dec. 29.5.61, Collection 6 p. 39 and culminating with
Application No. 10308/83, Altun v. the Federal Republic of Germany,
Dec. 3.5.83, D.R. 36 p. 209. Furthermore, the Commission's case-law
has been endorsed by numerous academic writers.
The applicant acknowledges that there is some support in the
Commission's early case-law for the proposition that Article 3 is not
infringed until an asylum seeker is actually removed to the territory
in which he is liable to be persecuted (e.g. Application No. 984/61
supra). The applicant contends that the corollary of such reasoning
would be that the Commission could only be potentially successfully
petitioned by the applicant when the very event occurs which is liable
to deprive him of any opportunity to make the application, or in which
the application will cease to be of practical utility. The applicant
submits that the Commission's decision in Application No. 984/61 (supra)
cannot be taken to imply that the Commission must remain inactive
until the point arises at which its intervention becomes otiose.
The applicant invokes the Commission's power to intervene in
this respect contained in Rule 36 of the Rules of Procedure, which the
applicant relies upon. The Commission itself has acknowledged, in a
different context, that "if an individual claims that the execution of
an expulsion measure taken against him may violate the Convention, a
remedy without suspensive effect is ineffective" ( No.7465/76,
Dec 29.9.76, D.R. 7 p. 153). The applicant therefore submits
that the Commission should exercise the power under Rule 36 of the
Rules of Procedure to indicate to the United Kingdom that it is
desirable to refrain from removing the applicant to Sri Lanka pending
the final determination of this application or the grant of asylum to
the applicant or until it is safe for the applicant to return to
Sri Lanka, whichever occurs the sooner.
The Commission's power to review the conclusion reached by the
Home Office that the applicant has failed to satisfy the Secretary of
State that he has a well-founded fear of individual persecution
remains to be examined. The applicant submits that the present is a
case where the competent authorities of the member States do not enjoy
a margin of discretion in the determination of factual issues and
their implications. Furthermore, the Home Office decision was based
upon little or none of the material which is now before the Commission,
and hence cannot bind the Commission, in view of the Commission's
obligations under Article 19 of the Convention "to ensure the observance
of the engagements undertaken by the High Contracting Parties".
The Commission's case-law emphasises the objective nature of
the test to be applied as to whether or not there are "serious reasons
to believe" or "serious reasons of fearing" that the person concerned
will be subjected to treatment in violation of Article 3, which is the
terminology used by the Commission in its case-law. The terminology
emphasises the objective nature of the test to be applied. This
approach is further reflected in the Commission's practice to consider
as relevant the opinions of the representative of the office of the
United Nations High Commissioner for Refugees, as in Application Nos.
8581/79 and 6102/73 (not reported).
In the case of the present applicant, the office of the United
Nations High Commissioner has supported the application to the United
Kingdom authorities. The representative in London of the United
Nations High Commissioner participated in the proceedings before the
Immigration Appeal Tribunal for the purpose of supporting the
application there, although the Tribunal does not appear to have
invited him or any other party to advance submissions on the merits of
the applicant's claim. The standpoint of the office of the United
Nations High Commissioner for Refugees in general with regard to the
return of Tamils to Sri Lanka was expressed in a statement issued to
all Governments in May 1984, which concluded that the situation in Sri
Lanka was so serious that Tamils could not, in principle, be returned
unless it was established beyond doubt that an individual was opposed
to returning solely for reasons of personal convenience.
The applicant's second submission is that the treatment which
he has received in the United Kingdom following his request to be
granted asylum has amounted to a violation of Article 3 of the Convention
independently of any violation of the same Article which may arise by
reason of his deportation to Sri Lanka. To this end the applicant
refers to the fact that following his request to be granted asylum he
was kept in detention until 6 September 1982 (for a period of more
than eight months) although the only offence of which he had been
convicted was an offence under the 1971 Act for which he had been
sentenced to imprisonment for fourteen days. The applicant adds that
on his release from prison he was denied an opportunity to take
employment to support himself and continues to be denied any such
opportunity, and that his application for asylum was denied even
before he had time to submit a letter through his solicitor setting
out the grounds of that application. He also complains that the Home
Office's response failed to deal with the points made on his behalf
but referred to extraneous matters, and that he has been denied the
opportunity to challenge that decision before an independent national
authority and has lived under the threat of that decision to deport
him, made in 1982, and the fear of its implementation at any instant,
subject only to the exhaustion of his unsuccessful applications to the
English courts and his redress before the Commission. Further, in
common with other members of the Tamil community, he has been made
aware by the Home Secretary's statement of 20 May 1985 that it is the
policy of the Home Office to return Tamils to Sri Lanka.
The applicant recalls that another asylum seeker found the
fear of being returned to his country of origin so intolerable that he
committed suicide even though he enjoyed a right of appeal denied to
the applicant in the present case (No. 10308/83, Altun v. the Federal
Republic of Germany, supra).
In the present case the applicant invites the Commission to
conclude that the treatment to which he has been subjected,
particularly in the state of insecurity in which he has been placed,
amounts to degrading treatment within the meaning of Article 3 of the
Convention. He refers in this respect to the Commission's decision on
the admissibility of Application No. 9330/81, Bulus v. Sweden, Dec. 1.1.84
(to be published). In that case the applicant complained of the
conduct of the Swedish authorities in imprisoning him for four days
and in leaving him in a state of anxiety by reason of the Swedish
Government's proposal to return him to Syria, whence he had come as a
refugee. The Commission there found that the application was
admissible. Consistency demands that the Commission should reach a
similar decision in the present case, particularly since the period of
imprisonment was longer in this case than in the Bulus application
(supra) and the applicant in this case was not entitled to appeal
against the decision to take him into custody, when Mr. Bulus had such
a right.
With regard to Article 13 of the Convention
For the reasons set out above the applicant contends that he
has been prejudiced by measures allegedly in breach of the Convention,
and mainly by the decision to deport him to Sri Lanka. For the
reasons set out in the above analysis he had no right of appeal
against the recommendation for his deportation on the ground that he
had reason to fear persecution in Sri Lanka. Nor had he any right at
all to appeal against the decision to make a deportation order against
him. Nor did he have any right to challenge the making of directions
for his removal to Sri Lanka on the grounds that he had a well-founded
fear of persecution there. Hence he had no remedy against the alleged
violation of the Convention.
It is of no avail that the applicant could have invoked his
fears of persecution in the course of an appeal to an adjudicator
against the Home Secretary's refusal on 8 August 1980 to vary the
applicant's leave to remain in the United Kingdom. This decision was
taken one year and eight months before the decision about which the
applicant now complains, and hence could not have been taken with
reference to the facts about which the applicant complains to the
Commission which have arisen since the date of that earlier decision.
Just as there was no judicial means to secure an effective
remedy within the meaning of Article 13 (by contrast with the position
in eg Application No. 8244/78 Uppal v.the United Kingdom, Dec. 2.5.79,
D.R. 17, p. 149 at para. 157 and Application No. 8118/77 Omkarananda
and others v. Switzerland, Dec. 19.3.81, D.R. 25 p. 105 at para. 119),
there is equally no administrative remedy. The Commission's case-law
establishes that such relief must exhibit certain characteristics if
it is to be considered "effective". These include notably the
requirement of independence which was recognised in the Klass case
(Eur. Court H.R., Klass and others judgment of 6 September 1978,
Series A No. 28) as also in the case of Silver and others (Eur. Court
H.R., Silver and and others judgment of 25 March 1983, Series A No.
6).
In the latter case, an opportunity to petition the Home
Secretary was not an "effective remedy" since:
"As the author of the directives in question, (the Home
Secretary) would in reality be judge in his own cause."
The applicant submits that similar reasoning would apply in the
present case, and the opportunity to write to a Member of Parliament
requesting reconsideration of the Home Office decision would equally
not amount to an effective remedy. A further inadequacy of a renewed
request to the Home Secretary is illustrated in the present case by
the reply which the applicant received to the request for asylum which
he made. The Home Office's reply to the applicant's former solicitors'
letter dealt with a matter extraneous to the applicant and concluded
that the applicant had no well-founded fear of individual persecution,
which is not the criterion of the Geneva Convention, nor of the
relevant paragraphs of the Immigration Rules.
The applicant points out that his contention as to the
interpretation of Article 13 reflects the terms of Recommendation R (81)
16 of the Committee of Ministers of the Council of Europe on the
harmonisation of national procedures relating to Asylum, Article 5 of
which provides:
"There shall be provision for an appeal to a higher
administrative authority or to a court of law against
the decision of the asylum request. Failing that there
shall at least be an effective possibility of having
the decision reviewed."
A similar standard is reflected in Conclusion No. 8 (XXVIII) on the
Determination of Refugee Status adopted by the Executive Committee of
the Programme of the United Nations High Commissioner for Refugees.
The applicant also relies on the Commission's decision on the
admissibility of Application No. 9330/81, Bulus v. Sweden (supra),
which the Commission declared admissible. In that case the point at
issue was whether Article 13 guaranteed a further remedy at the
enforcement stage of the expulsion decision, which had previously been
examined in two instances. In the present case by contrast, the
applicant had no right to appeal aginst the decision to make a
deportation order, following the recommendation of the Magistrates, no
right to raise the issue of asylum in any appeal against the
Magistrates' decision and no right to raise the issue of asylum in the
course of an appeal against the making of directions for his removal.
Conclusion of the applicant's submissions
The applicant therefore requests the Commission to find that
he has been the victim of violations of Articles 3 and 13 of the
Convention and calls upon the Commission to give an indication to the
United Kingdom in accordance with Rule 36 of the Rules of Procedure
that it is desirable to refrain from removing him to Sri Lanka pending
the final determination of the application, to grant to the applicant
asylum, or until it is safe for the applicant to return to Sri Lanka,
and equally that it is desirable to afford the applicant an effective
remedy before a national authority, pending the final determination of
this application, or the grant of asylum, or until it is safe for the
applicant to return to Sri Lanka, whichever occurs the sooner.
However, in his further submissions of 4 July 1986 the
applicant indicated that, in view of the leave to remain in the
United Kingdom which he has now been granted, his complaint based on
Article 3 of the Convention has been met in substance. He therefore
states that on receiving confirmation that the concession of leave is
not conditional on his making a formal application for leave,
entailing an abandonment of a claim to asylum, the applicant will
formally withdraw his complaint based only on Article 3. The applicant
maintains his complaint based on Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 May 1982 and registered
on 18 May 1982.
On 10 June 1982 the single member of the Commission assigned
to the application as Rapporteur made a preliminary examination of its
admissibility and requested the respondent Government to submit,
pursuant to Rule 40 (2) (a) of the Rules of Procedure, certain
information concerning the grounds for the refusal of the applicant's
request for political asylum.
The information was submitted by the respondent Government on
30 June 1982. On 17 July 1982 the Commission commenced its
examination of the admissibility of the application and decided,
pursuant to Rule 42 (2) (a) of the Rules of Procedure, to bring the
application to the notice of the respondent Government and to request
further information concerning the nature of the political activities
of the Tamil Liberation Organisation in the United Kingdom, the
treatment of similar cases to that of the applicant, the question as
to whether it was possible to consider the removal of the applicant to
an alternative destination apart from Sri Lanka.
The respondent Government submitted this information on 20
September 1982, and the applicant submitted his comments in reply
thereto on 7 January 1983.
The Commission had resumed its examination of the state of
proceedings of the application on 17 December 1982 on receipt of the
decision of the Immigration Appeals Tribunal in the applicant's case.
The Commission resolved that, in view of the suspensive effect of the
domestic remedies which the applicant was pursuing, the application
should be adjourned until the conclusion of those proceedings.
On 23 July 1984 the applicant's representative informed the
Commission that the applicant's appeal to the Court of Appeal had been
dismissed on 17 July 1984. On 3 August 1984 the applicant requested
the Commission to invoke Rule 36 of the Rules of Procedure, and to
indicate to the respondent Government that the applicant should not be
removed from the United Kingdom to Sri Lanka until the determination
of his application before the Commission. The single member of the
Commission acting as Rapporteur, having resumed his examination of the
application, decided on 12 August 1984 to request the respondent
Government, pursuant to Rule 40 (2) (a) of the Rules of Procedure, to
inform the Commission whether, and if so when, it was planned to remove
the applicant to Sri Lanka in the light of the political developments
in that country since the original deportation decision of 1982, and
with reference to the remarks of Mr. Justice Wolf in the High Court
decision of 14 October 1983 as to the non-availability of a court
review in the United Kingdom of the merits of the applicant's claim to
asylum.
On 4 September 1984 the respondent Government informed the
Commission that there were no plans for the removal of the applicant
from the United Kingdom and that the respondent Government was
reviewing the position with regard to the return of Tamils to Sri
Lanka.
On 9 November 1984 the applicant notified the Commission that
his application for leave to appeal to the House of Lords had been
refused on 8 November 1984, and that thereby the domestic legal
remedies were exhausted. On 23 November 1983 the respondent
Government notified the Commission that they would give prior notice
to the Commission of any proposal to deport the applicant. The
Commission resumed its examination of the application on
8 December 1984 and took note of the respondent Government's
above-mentioned letter, and decided to adjourn its examination of the
admissibility of the application pending notification from the
respondent Government of the outcome of the policy review referred to,
or the receipt of notice of a proposal to deport the applicant.
On 22 August 1985 the applicant submitted supplementary
observations (summarised above) together with a further request for
the application of Rule 36 in respect of his possible deportation to
Sri Lanka.
On 18 October 1985 the Commission resumed its examination of
the application and decided to invite the respondent Government to
submit written observations on its admissibility and merits pursuant
to Rule 42 (2) (b) of the Rules of Procedure.
On 11 February 1986 the respondent Government informed the
Commission of the announcement made on 20 May 1985, and of the
revocation of the deportation order made against the applicant and the
decision to grant him exceptional leave to remain in the United
Kingdom for six months. In these circumstances the respondent
Government suggested that no observations on the application might be
required.
This letter was communicated to the applicant's
representatives on 26 February 1986 who were invited to make any
comments which they considered appropriate. On 5 March 1986 the
applicant submitted his comments.
On 13 March 1986 the Commission resumed its examination of the
application and decided to invite the respondent Government to submit
written observations on the admissibility and merits of the
application with particular reference to the matters raised in the
applicant's letter of 5 March 1986. The respondent Government's
observations were dated 11 June 1986 and the applicant's observations
in reply were dated 4 July 1986.
On 3 December 1986 the respondent Government informed the
Commission of negotiations which had taken place between the parties
relating to the possible resolution of the applicant's complaint under
Article 3 of the Convention.
On 11 December 1986 the Commission resumed its examination of
the application and decided to adjourn this examination.
On 29 January 1987 the applicant's representatives informed
the Commission, in connection with the respondent Government's letter
of 3 December 1986, that the respondent Government had there indicated
that the grant of exceptional leave to remain disposed of only one
part of the application, that is the complaint based on Article 3
alone. The "main complaint" remained, based upon Articles 3 and 13
together, that the applicant had not had an effective remedy before a
national tribunal.
SUBMISSIONS OF THE PARTIES
The respondent Government
The submissions of the respondent Government are confined to
the question of admissibility only, and are divided into three
sections, concerning the facts of the present application, the
domestic law and practice, and questions going to the admissibility
of the application.
The Facts
Save for the following matters referred to, the respondent
Government do not dispute the facts as presented in the application.
The respondent Government refer first to the fact that the
applicant was first admitted into the United Kingdom on
9 September 1977 for a course of study, on condition that he left the
United Kingdom at the end of his studies and would not take
employment. They submit that from February 1979, if not earlier, the
applicant formed the intention to remain in the United Kingdom,
whether or not he was given leave to remain under the 1971 Act. They
refer, in support of this contention, to the fact that the applicant
was convicted on 17 July 1979 for working in breach of his conditions
of stay, the record of his poor attendance at his chosen course of
study, which has been submitted to the Commission, the applicant's
failure to attend the appeal hearing against the refusal on 8 August
1980 of further leave to remain in the United Kingdom as a student
because he (correctly) feared the outcome of the hearing, and the
applicant's deliberate evasion of immigration control by overstaying
his leave to remain for which he was arrested on 27 January 1982 and
convicted on 19 February 1982. Furthermore, when the applicant was
interviewed by an official of the Immigration Nationality Department
of the Home Office on 16 March 1982 whilst detained at Ashford Remand
Centre, he stated that he "did not feel like" returning to Sri Lanka
on discovering that he was unable to complete his studies and that he
was reluctant to return there because of the poorer circumstances in
which he would have to live there.
The respondent Government accordingly contend that the
applicant's claim to be a refugee must be considered in the light of
his immigration history and the fact that his application for asylum
was only made after his conviction for overstaying, and following four
and a half years' residence in the United Kingdom. Nor, in the
respondent Government's contention, was there any apparent reason
relative to events in Sri Lanka why the applicant should apply for
asylum at that particular time, and the Government submit that the
timing of his claim suggests that it was a tactical device to prolong
his stay in the United Kingdom.
The applicant's request was nevertheless carefully considered
by the Home Secretary, but it appeared that members of the applicant's
family had taken part in political activity in support of Tamil
candidates in Sri Lanka without suffering any harrassment from the
authorities and that the applicant's own political activities in the
United Kingdom were so minimal as to make it highly unlikely that they
had come to the notice of the Sri Lanka authorities. In these
circumstances the Secretary of State was not satisfied that the
applicant's case gave rise to circumstances in which it could be said
that the applicant had a well-founded fear of persecution in Sri Lanka
for the purposes of the 1951 United Nations Convention on the Status
of Refugees.
With regard to the applicant's immigration status during his
period in the United Kingdom, this may be summarised as follows:
- Between 9 September 1977 and 9 September 1979 the
applicant had leave to remain in the United Kingdom as a
student. He applied for an extension of that leave, which
request was refused on 8 August 1980.
- The applicant appealed from this refusal and by virtue
of Section 14 (1) of the 1971 Act could not be required to
leave the United Kingdom while that appeal was pending.
The appeal was eventually dismissed on 2 September 1981
when the applicant became liable to be deported from the
United Kingdom as an overstayer.
- The applicant was convicted as an overstayer on
19 February 1982 and recommended for deportation; he
was accordingly detained under para. 2 of Schedule 3
of the 1971 Act with a view to his deportation.
- On 27 April 1982 notice of the Secretary of State's
decision to deport the applicant together with directions
for his removal to Sri Lanka were served on the applicant,
which would normally have resulted in his removal to
Sri Lanka. The subsequent uncertainty was caused by the
various appeals and applications initiated by the applicant
thereafter, i.e.:
(a) an appeal to the Adjudicator under the 1971 Act
against the direction that he be removed to
Sri Lanka (dismissed on 14 July 1982);
(b) the present application to the Commission made on
14 July 1982;
(c) an appeal to the Immmigration Appeal Tribunal under
the 1971 Act against the Adjudicator's dismissal of his
destination appeal (dismissed on 18 November 1982);
(d) the application for judicial review of the scope of
the destination appeal as heard by the Adjudicator and the
Immigration Appeal Tribunal (dismissed on 14 October 1983);
(e) an appeal to the Court of Appeal against the
unsuccessful application for judicial review (dismissed
on 16 July 1984);
(f) petition for leave to appeal to the House of Lords
against the decision of the Court of Appeal (dismissed on
8 November 1984).
The applicant was not removed from the United Kingdom
following the dismissal of his final appeal since the Government's
policy with regard to returning Tamils to Sri Lanka was under review
in view of the circumstances in Sri Lanka at that time. On
20 May 1985 the Government announced a new policy in respect of Tamils
who expressed a fear of returning to Sri Lanka, although an application
for asylum had not been made or not been made successfully; such
persons were granted six months' exceptional leave to remain in the
United Kingdom. Such leave was ultimately granted to the applicant on
10 February 1986, the delay being caused by the large number of Tamils
whose cases had to be covered under the terms of the announcement.
The original period of exceptional leave has now been extended to a
further twelve months' exceptional leave which will expire no earlier
than 10 August 1987.
Furthermore, it is open to the applicant to make a further
application for asylum before the expiry of the special leave, and
were such an application to be refused, the applicant would have a
right of appeal against that decision under Section 14 of the 1971 Act
to the independent appellate authorities (Adjudicator and Immigration
Appeal Tribunal) established under the 1971 Act.
Domestic law and practice
The respondent Government submit first that, had the applicant
sought asylum as a refugee at any time between his arrival in the
United Kingdom on 9 September 1977 and 8 August 1980 (the date on
which his application for an extension of leave was refused by the
Secretary of State) his application would have attracted a right of
appeal under the provisions of the 1971 Act. Furthermore, during such
an appeal procedure, the applicant would not have been removed from
the United Kingdom. Had the applicant sought asylum as a refugee
following the expiry of his leave, and before his arrest for
overstaying, and had such a request been refused, the applicant would
have been served with a notice of intention to deport as an overstayer
(under Section 3 (5)(a) of the 1971 Act) and the applicant would have
enjoyed a substantive right of appeal under Section 15 of the 1971
Act. Hence the applicant could have applied for asylum, and, in the
event of refusal, exercised an appeal under Section 15 of the 1971 Act
in respect of a notice of intention to deport, at any time during the
nearly four and a half years that he was in the United Kingdom, from
9 September 1977 until his arrest as an overstayer on 27 January 1982.
The respondent Government acknowledge that the applicant had
no right of appeal against the merits of the decision of the Secretary
of State to accept the recommendation of the Magistrates' Court for
deportation following the applicant's arrest and conviction for
overstaying. Nevertheless, the applicant did have open to him an
appeal from the recommendation of the Magistrates' Court that he be
deported. The applicant initially exercised this right of appeal, but
expressly abandoned his appeal on 25 March 1982, having lodged his
application for political asylum.
The applicant contends that the right of appeal against
deportation recommendation was nugatory in the light of the decision
of the Court of Appeal in R against Nazari and Others (<1980> All ER
880). The respondent Government disagree. They submit that the
effect of the Court of Appeal's decision as it applies to the
applicant was not so rigid as to preclude altogether the possibility
of a successful appeal, although the decision acknowledged that the
nature of political systems operating in other countries was not
normally a matter for the courts, but one for the Home Secretary to
consider when determining whether it would be unduly harsh to an
accused to act on the recommendation and make a deportation order.
In that case Lawton L.J., giving the judgment of the court,
indicated certain guidelines to be applied in deciding whether or not
a recommendation for deportation should be made, but stressed that
these were only guidelines. He went on to describe the evidence
relating to the possible consequences for the appellant in that case
in the event of his deportation as "unsatisfactory" and stressed that
it was essential that proper evidence should be before the court
concerning the consequences of such a deportation. The respondent
Government submit that such evidence would be worthless if the court
was wholly unable to resist making a deportation recommendation in
circumstances where the evidence suggested that an applicant would be
at risk of serious harm in the destination country.
In addition Lawton L.J. suggested that the nature of the crime
and its seriousness were factors which would have to be taken into
account in deciding whether or not a deportation recommendation was to
be made, as well as taking into account the fact that the appellant in
that case would have to serve a four-year prison sentence before the
deportation issue could become live and in that time the political and
other circumstances in the country of destination might change. These
factors combine to suggest, in the submission of the respondent
Government, that the courts are prepared to consider the relevant
circumstances which an appellant may face if a recommendation of
deportation is made and implemented, and hence that an appeal against
the recommendation of the Magistrates that the applicant be deported
cannot be considered as being devoid of all possibility of success.
The respondent Government also explain in their submissions
how they intend to deal in the future with asylum applications from
persons who, like the present applicant, have leave to remain in the
United Kingdom which has expired. Such an application would, as at
present, be considered very carefully. If the application were
refused notice of intention to deport on the ground that the applicant
was an overstayer would be served under Section 3 (5)(a) of the 1971
Act, thereby attracting the right of appeal under Section 15 of the
Act. In the course of such an appeal the applicant would be able to
make representations to the appellate authorities (Adjudicator and
Immigration Appeal Tribunal) concerning his claim to be a refugee.
The respondent Government would, save in exceptional
circumstances, be prepared to proceed on this basis so as to attract
these rights of appeal even in cases where the applicant had been
convicted of overstaying and recommended for deportation, provided
that the application for asylum was made before the deportation order
was actually made. In such cases hitherto the applicant for asylum
has had no means of appeal and would have been in the same
circumstances as the applicant in the present case. By these
administrative measures, the Government would ensure in such cases
that no overstayer who claimed asylum would be removed without a
chance of having a decision to refuse asylum reviewed by an
independent tribunal.
However, the Government do not consider it appropriate to
proceed on this basis where a person has been convicted and
recommended for deportation and where the application for asylum is
made only after the deportation order has been made and the person is
therefore liable to be removed at any time. Given the opportunity to
seek asylum with the right of appeal before the making of a deportation
order and the fact that any application for asylum, whenever made,
would always be very carefully considered, the respondent Government
consider that the interests of finality make it reasonable that a
person in these circumstances be removed without a further avenue of
appeal being opened to him.
Admissibility
The respondent Government contend first that the applicant can
no longer claim to be a victim for the purposes of Article 25 para. 1
of the Convention. They refer to the revocation of the deportation
order and the granting to the applicant of leave to remain in the
United Kingdom and contend that they have thereby removed any
uncertainty concerning the applicant's position, and enabled him to
renew his asylum application in such a way as to attract a right of
appeal in the event of its refusal. The applicant is no longer liable
to be removed from the United Kingdom and an application by him for
leave to remain as a refugee can be made at any time before the expiry
of the 12 month period of leave which he still enjoys.
The respondent Government refer to the Commission's case-law
to the effect that, before an application can be declared admissible,
it must be shown that the claim to prejudice exists. This view is
supported by No. 7706/76, Dec. 5.10.77 (unpublished), where the
applicant complained of the revoked decision to deport him to Ghana
and of his detention and treatment pending the decision on his
deportation and on his claim for political asylum and of the
procedures adopted in deciding those matters. The applicant
originally submitted that his deportation to Ghana would be contrary
to Article 3, and that the admissibility of this claim had been
conceded by the revocation of the deportation order by the respondent
Government. The Commission held that the applicant was no longer
under any liability to be sent to Ghana and that his complaint was
accordingly manifestly ill-founded. The respondent Government contend
that the present case is wholly comparable.
In addition, the respondent Government submit that the
applicant has failed to exhaust domestic remedies for two, separate,
reasons.
First, the applicant failed to make his application for asylum
until after his arrest on 27 January 1982. At that time he had been
in the United Kingdom for almost four and a half years prior to the
recommendation that he be deported, during all of which time he had
the opportunity to make a claim for asylum attracting a right of
appeal. The respondent Government submit that the applicant cannot
rely on his own failure to take advantage of that opportunity while it
was still available to him to argue now that he has exhausted all
available domestic remedies in relation to his claim for asylum.
In the second place, the respondent Government argue that the
applicant has failed to exhaust domestic remedies by having abandoned
his appeal against the decision of the Camberwell Green Magistrates'
Court of 19 February 1982 to recommend his deportation. This appeal
was abandoned on 25 March 1982, approximately a month after the
applicant had made his application for asylum. The applicant contends
in this connection that an appeal to the Crown Court against the
recommendation on deportation would not have been an effective remedy
because he would not have been able to argue his case to be considered
as a refugee. While the respondent Government concede that the court
could not have considered an application for political asylum,
nevertheless the applicant's circumstances were significantly
different from those of Nazari (supra) in that he had been convicted
of a less serious offence than that appellant, did not face an
immediate term of imprisonment in the United Kingdom, and had made a
formal application for asylum which was being considered by the
Secretary of State. In view of the guidelines set out by Lawton L.J.
in the Nazari case (supra) the respondent Government submit that the
applicant could have contended in an appeal to the Crown Court that it
would be more appropriate that no recommendation for deportation be
made, thus enabling the asylum application to be considered on its
merits, and in the event of its being refused, enabling the applicant
to appeal to the appellate authorities under Section 15 of the 1971
Act.
The respondent Government contend that, had such arguments
been made on appeal, the recommendation to deport might well have been
substantively reconsidered; accordingly, the applicant should have
pursued this appeal which would have provided an effective and
sufficient remedy before a national authority and in failing to do so
he has failed to comply with the requirements of Article 26 of the
Convention.
In the further alternative, the respondent Government contend
that the applicant's claim under Article 3 is in any event manifestly
ill-founded. In this connection the applicant makes four principal
complaints by reference to which he contends there is a violation of
Article 3 in his case. These concern:
1. The compulsory return of an asylum seeker to a country
in which there are serious reasons for believing that he
will be subjected to treatment contrary to Article 3;
2. The detention of an asylum seeker in prison for a breach
of immigration law only;
3. The absence of a remedy against a refusal of asylum;
4. The exposure of an asylum seeker to the continuing fear
that he may at any time be returned forcibly to a country in
which there are serious reasons for believing that he will
be persecuted.
With regard to the first complaint the respondent Government
point out that the deportation order in the present case was only made
after the applicant's application for asylum had been fully considered
and refused. The applicant was not therefore an "asylum seeker" at
the time the deportation order was made, and it is not the practice of
the Government to remove asylum seekers pending consideration of their
application. However, a person whose application for asylum has been
refused cannot continue to be regarded as an "asylum seeker".
With regard to the complaint concerning detention, which
lasted from February 1982 until 6 December 1982, in the applicant's
case this had an objective justification in the light of the
applicant's two convictions under the 1971 Act and in view of his
imminent deportation, which gave the applicant a motive for attempting
to evade the authorities which he had done in the past. In these
circumstances the matters complained of do not attain the degree of
seriousness contemplated by Article 3 of the Convention.
With regard to the complaint concerning the absence of a
remedy against a refusal of asylum, had the applicant sought asylum
prior to his arrest as an overstayer, he would have had such an
appeal.
Finally, with regard to the continuing fear of imminent
removal which the applicant contends he was subjected to, this was
more imagined than real because, as the applicant's advisers were well
aware, so long as there was an appeal pending in the various appellate
authorities and courts in the United Kingdom, the Government, in
pursuance of their customary practice, would not remove the applicant
from the United Kingdom. After November 1984, when the applicant's
application for leave to appeal to the House of Lords was refused,
Tamils who expressed a fear of being returned to Sri Lanka were not
being removed there even if their applications for asylum had not been
successful, owing to the review of Government policy then undertaken.
Subsequently, neither the applicant nor his advisers took steps to
regularise his position following the announcement of 20 May 1985
granting six months' special leave, but no steps were taken to remove
the applicant, and he was granted special leave on 10 February 1986.
Hence the uncertainty and delay during this protracted period
has largely been caused by the applicant's own appeals and
applications which were instigated at a time when he knew that his
application for asylum had been refused and that he was otherwise
liable to be removed if those proceedings were unsuccessful. In
addition, the applicant has now been allowed to remain for a further
period, and he may apply for further leave, together with a right of
appeal against any refusal. In these circumstances, the respondent
Government contend that the applicant's complaint under Article 3 of
the Convention is manifestly ill-founded.
The Applicant
The applicant points out first that the respondent Government
have confined their observations to questions of admissibility only,
and have not addressed the question of the merits of the application
despite the Commission's request for observations on this topic.
Hence the respondent Government have still failed to say whether, or
on what grounds, the United Kingdom claim that it is in conformity
with the Convention to deny the applicant an effective remedy against
the decision dated 15 April 1982 to deport him to Sri Lanka.
The applicant's replies to the three arguments on admissibility
submitted by the respondent Government may be summarised as follows:
As to whether the applicant can claim to be a victim under
Article 25 para. 1 of the Convention
The respondent Government first announce in their observations
a change in the applicant's status and in the procedure to be followed
in future to deal with similar applications for asylum. They contend
that by reason of these changes the applicant can no longer claim to
be a victim of a violation of the Convention.
It appears from the changes now proposed by the respondent
Government that they are persuaded that it is at least desirable, in
the context of the Convention, to relieve the applicant of the
continuing fear of deportation to which he has been exposed since
15 April 1982 and "to ensure in such cases that no overstayer who
claimed asylum would be removed without a chance of having a decision
to refuse asylum reviewed by an independent tribunal". The applicant
points out that the respondent Government have twice granted the
applicant a status for which he has not applied, namely a status of
exceptional leave to remain in the United Kingdom, and this despite a
letter of 5 February 1986 stating that if the applicant wished to
remain beyond August 1986 he must make a formal application to this
effect. No such application has been made. Further, the change in
Government policy does not appear to have been notified to a wider
public, by changing the Immigration Rules or by Parliamentary answer
or otherwise.
The applicant hence understands that the Government are
granting him exceptional leave to remain until at least 10 August 1987
without formal application and thus without requesting the Home
Secretary to depart from the Immigration Rules and without thereby
abandoning his claim that he is and has been since February 1982
entitled to remain as a refugee. The applicant expressly requests the
Commission to obtain the clarification and confirmation of the
respondent Government on this particular point.
If such a change in the applicant's status is confirmed, the
applicant would be able to withdraw his complaint based on Article 3
of the Convention, although it would leave unaffected his claim based
on that provision read in conjunction with Article 13, that he is
entitled to an effective remedy before a national authority against
the decision dated 15 April 1982.
The concession made to the applicant does not rectify the
breach of Article 13 of the Convention which the applicant has
suffered since it is irrelevant that it is now open to the applicant
to make a fresh application for asylum and to appeal against any
refusals. Such an appeal would be based on the facts and law existing
at the time of the refusal and not on the facts existing in February
1982 which were central to the claim for asylum then made. Moreover,
it would proceed on the basis that the applicant's claim for asylum
made in 1982 was in the Government's words "a tactical device to
prolong his stay in the United Kingdom".
Nor was the opportunity to seek asylum at another time a
relevant consideration. The respondent Government do not claim that
the applicant would have enjoyed a right to appeal against the refusal
to grant asylum had such an application been made earlier. The
respondent Government merely point out that, as a matter of
administrative practice, the relevant administrative authority would
have exercised its discretion to use a procedure attracting a right of
appeal rather than that used in the applicant's case which involved no
appeal. Hence the respondent Government state that if the applicant
had sought asylum prior to his conviction his application would, as a
matter of administrative practice, have been dealt with on the basis
that a refusal of asylum would have resulted in the service on the
applicant of a notice of intention to deport rather than the immediate
making of a deportation order. Under the terms of the 1971 Act, the
service of a notice of intention to deport results in a right of
appeal under Section 15 of the 1971 Act. At best this is a precarious
opportunity for appealing, because it depends on the exercise of a
discretion unregulated by published rule.
In addition, the opportunity to apply for asylum at a time
when an appeal would have been available would not avail the
applicant. The situation in Sri Lanka was relatively calm between
September 1977 and August 1981 and during the majority of this period
the United Kingdom maintained a policy of not granting asylum to
Commonwealth citizens. For both these reasons the applicant had no
cause to apply for asylum until, at the soonest, shortly before his
arrest.
The basis of the applicant's complaint under Article 13 is
therefore the question whether the applicant had an effective remedy
when he needed it. He contends that this was not the case.
The need for an effective remedy against the decision taken on
15 April 1982 is further illustrated by the fact that that decision was
evidently influenced in some measure by reports from the college which
the applicant had attended, and a report of 22 March 1982 written by a
junior civil servant who had interviewed the applicant. The first of
these reports is irrelevant to the question whether the applicant had
a well-founded fear of persecution in 1982, and the second report
contains errors and prejudicial inferences. The applicant submits
that his claim for asylum should not have been determined by reference
to these reports without his having had an opportunity to challenge or
even see them.
In addition, the leave offered to the applicant is precarious
and could be revoked or varied without inhibition. The exceptional
nature of the leave deprives the applicant of the benefits endowed by
the Geneva Convention on the Status of Refugees including the
Convention travel document and his period of residence in the United
Kingdom from 15 April 1982 to 11 February 1986 will be disregarded for
such purposes as naturalisation.
In addition, the concession will not affect the decisions of
the English courts that a person in the position of the applicant is
not entitled to appeal against a decision to deport him to a country
in which he claims that he has a well-founded fear of persecution.
Hence the applicant is still able to claim to be a victim of a
violation of the Convention in view of the informal nature of the
announcement of the policy change and its consequential precarious
status. The respondent Government's announcement is imprecisely
worded and it is not clear who may fall within the "exceptional
circumstances" in which it is proposed to deport an overstayer who has
applied for asylum without any opportunity of a hearing under Section
3 (6) of the 1971 Act notwithstanding the concession which is
generally to apply in such circumstances. Furthermore, under the new
policy the Home Office is not to rely on Section 3 (6) of the 1971 Act
only in the case of those convicted of overstaying, and not in the case
of those convicted of any other offence, including immigration
offences, however minor.
Hence the only aspect of the circumstances which apply to the
applicant which has changed is that an administrative directive has
been given that, of the two alternatives of proceeding against a person
who has remained beyond the time allotted to him for his stay in the
United Kingdom and for the making of a deportation order, the Home
Office will prefer the procedure under Section 3 (5)(a) of the 1971
Act to that of a prosecution under Section 24 of the 1971 Act,
followed by a decision to make a deportation order under Section 3 (6)
of the 1971 Act, which does not carry a right of appeal.
For these reasons the applicant submits that the prejudice
that he has suffered still exists and that he has been denied an
effective remedy against the decision dated 15 April 1982 and has been
offered, at best, the prospect of a different remedy against a
different decision. The status now conferred on him of exceptional
leave to remain presupposes that he has no claim to remain within the
rules and does not qualify for the protection guaranteed under the
Geneva Convention. The precedent established by this case as to the
limited availability of any review by the courts in the event of a
deportation order being made against a person in the applicant's
circumstances will stand.
Nor can the present case be compared with the circumstances of
the Commission's decision on the admissibility of Application
No. 7706/76, Dec. 5.10.76 (published in 4 Digest of Strasbourg
Case-law p. 409). There was no complaint of the denial of an
effective remedy in that case and no reliance was placed on Article 13
of the Convention. That case involved the operation of Articles 5
and 6 of the Convention and hence had no bearing on the present claim
to an effective remedy against the decision to allow him asylum.
Exhaustion of domestic remedies
With regard to the complaint that the applicant has failed to
exhaust domestic remedies contrary to Article 26 of the Convention,
this is surprising in the light that the applicant has appealed to an
immigration adjudicator, to the Immigration Appeal Tribunal, and has
sought judicial review from the High Court, on appeal from the Court
of Appeal, and has applied to the Judicial Committee of the House of
Lords in the present application. At each instance it was held that
it was not open to the applicant to raise his claim of alleged
persecution in the country of destination by way of the judicial
process.
The respondent Government first contend that the applicant
could have applied for asylum between September 1977 and January 1982
and enjoyed an appeal from its refusal if it were refused, and has
thereby failed to satisfy the provisions of Article 26. Such a remedy
would not have addressed the applicant's complaint which relates to
the treatment he has received in the period between April 1982 and
February 1986; the respondent Government's argument is therefore
irrelevant.
The respondent Government then contend that on 25 March 1982
the applicant abandoned his appeal in the criminal courts against the
recommendation made for his deportation on his conviction by the
Camberwell Green Magistrates' Court. The applicant had then only
recently applied for asylum and could not know that his application
would fail. The matters about which he now complains had not yet
occurred.
In addition, the respondent Government criticise the
applicant's interpretation of the decision in R. v. Nazari and others
(supra) and the summary that that case is authoritative for the
proposition that the question of political asylum cannot be raised by
way of an appeal against an order recommending deportation. However,
the language criticised by the respondent Government in the present
case is taken verbatim from the judgment of the Court of Appeal in
the applicant's own case (R. v. Immigration Appeal Tribunal ex parte
Murugandandarajah Kandiah at p. 4).
In the applicant's contention the construction which the
respondent Government now seek to place on the Nazari case (supra) is
flatly contrary to that placed on the case by the Divisional Court and
the Court of Appeal in the proceedings brought by the applicant
himself. The respondent Government cite no judicial or academic
authority whatever to support their construction of that case, and
such published reports as there are available support the applicant's
contention and not that of the Government (see 124 Solicitors' Journal
(1980) 359 and Halsbury's Laws of England 4th Edition abridgement 1980
para. 1506).
The resolution of this question of English law is ultimately
not for the Commission, since according to the Commission's case-law
and that of the Court, the obligation on an applicant is to make
normal use of remedies that are likely to be effective and adequate
(No. 6840/74, Dec. 12.5.77, D.R. 10 p. 5 at para. 19). As the
Commission held in Application No. 8378/78 (Dec. 14.5.80, D.R. 20
p. 168 at para. 170):
"In the absence of any precedents to indicate that the
Divisional Court would clearly have had the jurisdiction to
consider the complaint as put by the applicant and thus that
such a claim would have had some minimal prospect of
success, the Commission finds that the remedy of judicial
review would have been ineffective in the circumstances of
the case."
Applying the equivalent reasoning in the present case, the
remedy of an appeal against the recommendation of a deportation order
would not in the circumstances of the present case have been an
effective remedy for the applicant's complaint.
Manifestly ill-founded
Finally, the respondent Government contend that the
applicant's claim under Article 3 alone is manifestly ill-founded.
They do not contend that the claim under Article 13 read in
conjunction with Article 3 is manifestly ill-founded.
As is set out above, the applicant is prepared to concede that
the decision now made to permit him to remain in the United Kingdom
until 10 August 1987, and to consider sympathetically any claim to
remain longer, meets the substance of his complaint based on Article 3
provided that the concession is not conditional upon a formal
application by him entailing an abandonment of a claim to asylum.
On obtaining such confirmation, the applicant will withdraw
his complaint to the extent that it is based only on Article 3 of the
Convention.
THE LAW
1. The applicant first complains that his exposure, as an asylum
seeker, to the continuing fear that he may be returned forceably to a
country in which there are serious reasons for believing that he will
be subjected to treatment contrary to Article 3 (Art. 3) of the Convention,
together with the decision so to return him, and his continuing
detention in prison on the basis of a breach of immigration law alone,
together with the denial of an effective remedy against a refusal of
asylum constituted a breach of Article 3 (Art. 3) of the Convention.
Article 3 (Art. 3) provides:
"No one shall be subjected to torture or to inhuman
or degrading treatment or punishment."
The respondent Government contend that the applicant has
failed to exhaust domestic remedies, first because he failed to make
his application for asylum until after his arrest on 27 January 1982,
which arrest affected his status and the subsequent appeal procedures
available to him, and secondly because the applicant abandoned his
appeal against the decision of the Camberwell Green Magistrates' Court
of 19 February 1982 to recommend his deportation. The respondent
Government contend that the applicant could have submitted in an
appeal to the Crown Court that it would be more appropriate that no
recommendation for deportation be made in order to enable an asylum
application to be considered on its merits and, in the event of its
refusal, the applicant would then have been able to appeal to the
appellate authorities under Section 15 of the 1971 Act.
The applicant contends that the invocation by the Government of Article
26 (Art. 26) of the Convention is in itself unreasonable in the light of the
fact that the applicant has appealed to an immigration adjudicator, to the
Immigration Appeals Tribunal, has sought judicial review from the High Court,
and then on appeal to the Court of Appeal, and has thereafter applied to the
Judicial Committee of the House of Lords in the context of the present
application. At each of these appeals and instances it was held that it was
not open to the applicant to raise his claim of alleged persecution in the
country of destination by way of the judicial process. With regard to the
first "remedy" invoked by the respondent Government, the applicant points out
that it would not have addressed his complaint, which relates to the treatment
he has received in the period between April 1982 and February 1986; an earlier
application for asylum than that which was made by the applicant would not
therefore have been a remedy for the matters which he brings before the
Commission.
With regard to the fact that the applicant abandoned his
appeal against the recommendation of deportation he points out that
the case of R. against Nazari and others (<1980> All ER 880) is
authority for the proposition that the courts are unable to consider,
even in the context of an appeal against a recommendation for
deportation, the risk which an intended deportee will run as a result
of political or other persecution in a country of destination. In
this respect the applicant relies upon the terms of the judgment of
the Court of Appeal in his own application for judicial review (on
appeal).
The Commission recalls that, in accordance with the terms of
Article 26 (Art. 26) of the Convention and its established case-law, the
obligation on an applicant is to make normal use of the remedies that
are likely to be effective and adequate for the complaints which he
seeks to bring before the Commission (No. 6840/74, Dec. 12.5.77,
D.R. 10 p. 5 at para. 19). The remedies which the applicant is
thereby called upon to exhaust must therefore first relate to the
matters which he seeks to bring before the Commission. In the
circumstances of the present case, it would appear that an application
for asylum which was lodged prior to the applicant's arrest would have
had to have been based on allegations of fact relating to the position
in Sri Lanka which are essentially different from those which the
applicant makes the subject of his application. Accordingly an
earlier application for asylum would not have provided a remedy for
the matters about which the applicant now seeks to complain to the
Commission.
The Commission has also held that the mere existence of doubt
as to the effectiveness of a particular remedy does not itself excuse
an applicant from the requirement to exhaust it. However, this
obligation does not extend to a requirement that an applicant must
pursue appeals in the face of, and despite, settled precedent, the
effect of which is to restrict the availability of a particular
remedy, or to render it ineffective for the resolution of the
applicant's complaint. In the present case the applicant abandoned his
appeal against the recommendation for his deportation imposed by the
Magistrates' Court. However, in the course of his appeal from his
application for judicial review of the decision of the Immigration
Appeal Tribunal the Court of Appeal examined the case of R. against
Nazari and others (supra), which is the principal precedent as to the
scope of an examination of an appeal against a recommendation to
deport. Notwithstanding the respondent Government's contentions to
the contrary, it appears that the Court of Appeal considered in the
context of the facts of the present case that the case of Nazari and
others (supra) was authority for the proposition that the issue of
political asylum was not one which could be raised by way of an appeal
against an order recommending deportation.
The Commission recalls that its task is not to resolve
question of domestic law, but that, in the context of determining
whether or not an applicant has complied with the requirements of Article 26
(Art. 26) of the Convention, it must decide whether normal use of the
appropriate domestic remedies for the complaints under the Convention has been
made in the course of the proceedings in domestic jurisdiction. The Commission
finds, in the absence of any precedents to indicate that there would have been
a wider jurisdiction than that established in R. against Nazari and others
(supra) or that an appeal notwithstanding that decision would have had at least
some minimal prospects of success, that the applicant was not required in the
circumstances of the present case to pursue an appeal against the
recommendation for his deportation imposed by the Magistrates' Court. In this
respect the Commission recalls that the applicant did apply to the Adjudicator,
and subsequently to the Immigration Appeal Tribunal, and thereafter by way of
judicial review to challenge the decisions made in relation to his intended
removal from the United Kingdom.
It follows that the applicant has not failed to comply with
the requirement of Article 26 (Art. 26) of the Convention.
2. The Commission must therefore consider the applicant's
complaint under Article 3 (Art. 3) of the Convention relating to the initial
decision that he be removed from the United Kingdom.
The Commission notes first that the applicant sought political
asylum in the United Kingdom as a result of his contentions as to the
political circumstances in Sri Lanka and the consequences as perceived
by him of his possible return there. The right to political asylum is
not, however, amongst the rights and freedoms protected by the
Convention. Nevertheless, as the Commission's established case-law has
consistently recognised, the removal of a person to a jurisdiction
where he has legitimate reason to dread treatment contrary to
Article 3 (Art. 3) of the Convention may give rise to an issue
engaging the responsibility of the removing State under Article 3
(Art. 3) of the Convention (No. 10308/83, Dec. 3.5.83, D.R. 36 p. 209).
In the present case the applicant was served, on 27 April 1982,
with a notice by the Secretary of State of the latter's decision to
deport him to Sri Lanka. The applicant contends that this decision,
coupled with the uncertainty which ensued in the subsequent period,
during which the applicant was pursuing domestic remedies to challenge
that decision, constituted a violation of Article 3 (Art. 3) of the
Convention.
The respondent Government have contended that, in view of the
particular development of the facts of the present case, the applicant
can no longer claim to be a victim of a violation of the Convention
under the terms of Article 25 para. 1 (Art. 25-1) thereof. They point
out in particular that the applicant's removal to Sri Lanka was
prevented during the course of his appeal proceedings, which lasted
until his petition for leave to appeal to the Judicial Committee of
the House of Lords, which was dismissed on 8 November 1984. Following
this the applicant continued to be permitted to remain in the United
Kingdom and has since been granted special leave so to remain in the
light of the respondent Government's review of its policy with regard
to returning Tamils to Sri Lanka. This review resulted from an
examination of the circumstances prevailing in Sri Lanka.
The Commission notes in this context that the new policy of
not returning Tamils who express the fear of returning to Sri Lanka,
notwithstanding whether an application for asylum has been made or
indeed rejected, was announced. Such persons were granted six months'
exceptional leave to remain in the United Kingdom and the applicant
was expressly granted such leave with effect from 10 February 1986.
That period of leave has since been extended for a further period of
12 months, and the respondent Government have expressly informed the
Commission, in the context of these proceedings, that the period of
exceptional leave which the applicant currently enjoys will expire no
earlier than 10 August 1987. At the same time the respondent
Government point out that it remains open to the applicant to make a
further application for asylum if he so wishes.
The respondent Government further point out that the applicant
is no longer detained, and has not been so detained for a considerable
period of time. The respondent Government therefore contend that the
applicant's complaints to the Commission under Article 3 (Art. 3) of the
Convention have been substantially resolved.
The applicant, for his part, submits that he has nevertheless
been exposed to the risk and threat of deportation in circumstances
which he contends would have been contrary to Article 3 (Art. 3) of the
Convention, and these circumstances were aggravated by his initial
imprisonment, and by the absence of a domestic remedy which would have
been effective for him to make his appropriate submissions about the
risks which such a deportation would entail.
The Commission considers that the complaint concerning the
alleged lack of remedies should be examined under Article 13 (Art. 13)
of the Convention. With regard to the complaint under Article 3
(Art. 3) it recalls its decision in Application No. 7706/76 (Dec. 5.10.76,
Digest of Strasbourg Case-law 4 p. 409) where the applicant complained
of a revoked decision to deport him to Ghana, which deportation he
contended would have involved exposing him to a violation of Article 3
(Art. 3) of the Convention. The Commission recognises that, in
certain circumstances, the factual development in a case may give rise
to circumstances where the substantial grievance complained of by the
applicant is resolved in such a way that he may no longer claim to be
a victim of a violation under the Convention. In the present case the
Commission recalls that, by virtue of the suspensive effect of the
domestic remedies which the applicant pursued in the United Kingdom,
he was in fact protected from the possibility of deportation during
the course of those proceedings. The suspensive effect of those
proceedings may be itself an essential requirement for them to be
regarded as effective remedies for the purposes of Article 26
(Art. 26) of the Convention. Furthermore, the applicant was subsequently
assured, in the context of the proceedings before the Commission, that
his removal to Sri Lanka would not occur during the course of his
domestic appeal.
Subsequently, the applicant has been granted exceptional leave
to remain in the United Kingdom for a total period which has exceeded
five years since the Secretary of State's original decision for his
removal. In these circumstances the Commission finds that the
applicant is not currently able to contend that he is at risk of
treatment contrary to Article 3 (Art. 3) of the Convention by virtue of his
imminent removal from the United Kingdom. In this respect the
Commission recalls that the applicant's contention that he should be
granted asylum is not one which falls within the Commission's
competence, and that this issue is a matter in respect of which it is
open to the applicant to make a further application to the competent
authorities in the United Kingdom if he so wishes.
Furthermore, the applicant's associated complaint, that he was
denied a remedy whereby the substance of his complaint of the risk of
his treatment in the event of his deportation could be assessed, has
also been resolved so as to provide a remedy with suspensive effect
for unsuccessful applicants for asylum whose leave to remain in the
United Kingdom has expired.
In these circumstances the Commission concludes that the
applicant's complaint under Article 3 (Art. 3) of the Convention is
resolved in such a way that, in the particular circumstances of the
present application, he is no longer able to claim to be a victim
within the terms of Article 25 para. 1 (Art. 25-1) of the Convention.
It follows that this aspect of the applicant's application is
manifestly ill-founded within the meaning of Article 27 para. 2 (Art.
27-2) of the Convention.
3. The applicant finally complains that he has been subjected to
a violation of Article 13 (Art. 13) of the Convention in the context of the
facts of his present application. Article 13 (Art. 13) of the Convention
provides:
"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."
The Commission has already concluded that within the
circumstances of the present application the applicant can no longer
claim to be a victim of a violation of the substantive right to
protection from inhuman and degrading treatment and torture which he
alleged his deportation to Sri Lanka would engender. The Commission
must now consider the extent to which the applicant may nevertheless
be able to claim to be a victim of a violation of the Convention in
accordance with Article 25 para. 1 (Art. 25-1) thereof in respect of
Article 13 (Art. 13) of the Convention.
The Commission recalls its decision in Application No.
10473/83 (Dec. 11.11.85, unpublished) in the following terms:
"Article 13 (Art. 13) guarantees a right to an effective remedy to
everyone who claims that his rights or freedoms under the
Convention have been violated. However, this does not mean
that there must exist a remedy in respect of every complaint
as soon as an applicant invokes the Convention. It is
necessary that the complaints or alleged violations fall
within the scope of the rights and freedoms protected by the
Convention and the individual can claim to be a 'victim'
within the meaning of Article 25 (Art. 25) of the Convention.
Accordingly, Article 13 (Art. 13) of the Convention does not
require a remedy in respect of an alleged violation which is to be
regarded as incompatible with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention."
In as much as the applicant may seek a remedy in respect of
his claim to be granted political asylum in the United Kingdom the
Commission recalls that such a right is not specifically guaranteed by
the terms of the Convention. It follows that the Commission's
examination of the applicant's present complaint must be in the
context of an assessment of the remedies which were available to the
applicant in respect of the complaints under the Convention which he
seeks to bring before the Commission.
The Commission's task under the Convention is to examine the
facts of the application submitted to it. Its task is not to examine
the operation of a system of national law in abstracto, but to decide
whether the facts which are the subject of an application reveal an
admissible allegation of a violation of the Convention.
It is relevant in this context that the applicant was able to
take proceedings on a destination appeal and subsequently, by way of
judicial review with an appeal to the House of Lords. These
proceedings did not offer the applicant the opportunity to have his
complaint of an alleged violation of Article 3 (Art. 3) of the Convention
examined by the English courts. It appears that these remedies were
not effective for this complaint and so did not satisfy the
requirements of Article 13 (Art. 13) of the Convention. Notwithstanding the
limited scope of these proceedings, as a practical fact and as a
matter of national law and practice they had suspensive effect upon
the decision to remove the applicant to Sri Lanka. In addition,
although the applicant contends that he was not able to appeal against
the substance of the Secretary of State's decision to deport him to
Sri Lanka on the grounds that such deportation would have involved a
violation of the Convention and thereby bring his claim to political
asylum before the judicial authorities, the applicant has in fact been
granted special leave to remain in the United Kingdom. Furthermore,
this decision was made in the light of the political circumstances in
Sri Lanka, and with reference to the contentions which the applicant
has submitted as to the risks which his deportation to Sri Lanka would
involve.
The respondent Government acknowledge that the applicant had
no right of appeal against the merits of the decision of the Secretary
of State to accept the recommendation of the Magistrates' Court that
the applicant be deported following his arrest and conviction for
overstaying. Nevertheless, the respondent Government have also
explained a change in their policy as to the procedure which is now to
be applied to persons who apply for asylum, after their leave to
remain in the United Kingdom has expired. In this connection it is
recalled that one of the applicant's complaints is specifically that
he was deprived of any appeal on the merits of such a decision because
of his status as an overstayer at the time of his asylum application.
Under the new system, if an application for asylum is refused, the
Secretary of State's notice of intention to deport on the ground that
the applicant is an overstayer will be served under Section 3 (5)(a)
of the 1971 Act, with the result that a would be asylum seeker would
have the right of appeal under Section 15 of the 1971 Act. In the
course of such an appeal to the Adjudicator and then to the
Immigration Appeal Tribunal such an asylum seeker will now be able to
appeal against such notice of intention to deport on the basis that it
would expose him to treatment contrary to Article 3 (Art. 3) of the
Convention. In consequence, the legal circumstances in which the
applicant found himself have been changed in such a way as to prevent
their recurrence both for him, or for other individuals.
In view of these events the Commission concludes that, as a
matter of practical fact, the development in the circumstances of the
present application have been such as to resolve the substance of the
applicant's complaints. In these exceptional factual circumstances
the applicant can now no longer claim to be a victim in respect of the
alleged absence of a remedy as required by Article 13 (Art. 13) of the
Convention for his allegation that his deportation would involve a
breach of Article 3 (Art. 3) of the Convention.
It follows that this part of 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)