Devaseelan v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtImmigration Appeals Tribunal
JudgeC. M. G. OCKELTON,Deputy President
Judgment Date13 March 2002
Neutral Citation[2002] UKIAT 702

[2002] UKIAT 702

IMMIGRATION APPEAL TRIBUNAL

Before:

Mr C. M. G. Ockelton (Deputy President)

Mr D. K. Allen

Mr P. R. Moulden

Between:
Justin Surendran Devaseelan
Appellant
and
The Secretary of State for the Home Department
Respondent

Devaseelan (Second Appeals — ECHR — Extra-Territorial Effect) Sri Lanka *

DETERMINATION AND REASONS
SUMMARY
1

This ‘starred’ determination gives the Tribunal's view on a number of issues raised by human rights appeals and, particularly, human rights appeals by Tamils from Sri Lanka. At paragraphs 39–42 there are guidelines on how a second Adjudicator should approach the determination of another Adjudicator who has heard an appeal by the same Appellant. Our views on the ‘extra-territorial effect’ of Articles 5 and 6 of the European Convention on Human Rights are at paragraph 110. Our conclusions on whether, in general, the removal of Tamils to Sri Lanka breaches Articles 3, 5, 6, 8 or 14 of the Convention are at paragraphs 82, 87, 112, 124 and 126–7.

INTRODUCTION
a. The history of this appeal
2

The Appellant is a citizen of Sri Lanka. His date of birth is given as 22 September 1975. He came to the United Kingdom on 22 August 1996. He was carrying a false passport. He claimed asylum. On 30 October 1996 he was refused asylum. He appealed. His appeal was heard by an adjudicator on 2 May 1998. The Appellant, who was represented by an experienced firm of solicitors, expressly elected to have his appeal determined on the basis of the documentary evidence on file. The adjudicator considered that evidence, which included the record of the Appellant's interview in which he set out his story of what he claimed had happened to him in Sri Lanka. The adjudicator studied the evidence. He concluded that the Appellant's story was not the truth. He wrote as follows:

‘I do not accept that it is reasonably likely that the Appellant was detained, ill-treated and released in the circumstances that he has described. This alleged incident is the only activity by the authorities, which was deliberately targeted at the Appellant. I have accepted that his home may well have been damaged during the military offensive, but I do not accept that the conduct of the military offensive can be classed as persecution of the Tamil population in the Jaffna Peninsula, or of the Appellant and his family in particular. For the foregoing reasons, I do not accept that the Appellant had a well-founded fear of persecution by the authorities when he left Sri Lanka. Nor do I accept the claim, at paragraph 2 of the grounds that Tamils in Sri Lanka are a persecuted group per se.’

3

He went on to examine the country evidence, and to consider whether the Appellant could, in his own particular circumstances, be lawfully returned to Colombo. He concluded that returning the Appellant to Colombo would not breach the Refugee Convention. He dismissed the appeal.

4

A party dissatisfied with the determination of an adjudicator has (and at the time in question had under section 20 of the Immigration Act 1971) a right of appeal to the Tribunal, subject to any requirement as to leave. The Appellant did not apply for leave to appeal. He did not challenge the adjudicator's decision. His only claim to be in the United Kingdom had failed. He had no right to remain here. Yet he did not leave; and, so far as we are aware, the Secretary of State took no steps to remove him.

5

On 2 October 2000 the Human Rights Act 1998 came into force. On 10 October solicitors on behalf of the Appellant, Sri and Co., wrote to the Immigration Office at Heathrow. They were not the Appellant's previous solicitors: they said they had been instructed only that day. The letter includes a new claim for asylum. It is based on the solicitors' expressed opinion that “the situation has deteriorated further”. That opinion is supported, in the letter, by selective references to documentation, some of which was already quite old. The letter suggested that documents not available earlier should be taken into account in assessing whether the Appellant is, after all, a refugee. It further suggested that, if the Immigration Officer were not minded to consider a fresh claim for asylum, he refer the case to an adjudicator under section 21 of the 1971 Act. That, as the solicitors should have known, was impossible: for 2 October 2000 also saw the repeal of section 21 together with the whole of the relevant Part of the 1971 Act.

6

The solicitors' letter went on to claim, as an alternative, that the Appellant's removal would be a breach of the European Convention on Human Rights. With astonishing ignorance of the field of law in which they do so much work, Sri and Co. write of “Art. 3 ECHR, which is soon to be incorporated into domestic law in the form of the Human Rights Act.” If Sri and Co. were not, on 10 October 2000, aware that the Human Rights Act was already in force, that is entirely reprehensible.

7

The Secretary of State replied to the solicitors' letter on 21 November 2000. He indicated that, in his view, the matters set out in the solicitors' letter did not show that the claim to asylum now being made was sufficiently different from that which was made originally. He declined to entertain the letter as a fresh claim. He went on to consider the Appellant's claim that his removal would breach the European Convention on Human Rights, specifically Articles 3, 5 and 14, to which the solicitors' letter had referred. He said that he had decided that the information before him did not merit a grant of exceptional leave to remain – that is to say, a guarantee against removal. He informed the solicitors that the Appellant had a right of appeal on human rights grounds. He served a One-Stop Notice.

8

As the Secretary of State's letter points out, the Appellant had no right of appeal to the Appellate Authority against the decision not to treat the letter of 10 October as a fresh claim for asylum. The only possible challenge would be by judicial review. So far as we are aware, no such challenge was made. The position so far as the Appellant's refugee claim is concerned is that he failed to establish that it was based on truth; that there have been judicial and administrative decisions that he is not a refugee; and that he has not pursued challenges to those decisions.

9

The Statement of Additional Grounds attached to the One-Stop Notice was completed and returned. It claims that the Appellant's return to Sri Lanka would breach Articles 3, 6, 9 and 14. The Secretary of State replied that he did not consider that that would be the case, and issued appeal forms. The grounds of appeal, sent in by a different firm of solicitors again, Tony Purton Solicitors, are that the Appellant's return would breach Articles 2, 3, 5 and 14. The Appellant's human rights appeal was heard by an adjudicator, Mr A.J. Olson, on 16 February 2001. Articles 2, 3, 5, 6 and 14 were argued. The adjudicator heard oral evidence from the Appellant. He dismissed the appeal.

10

It is against that determination that the Appellant appeals to the Tribunal. The grounds of appeal raise Articles 3, 5, 6 and 14.

11

Leave was granted because, in the opinion of a Vice President, “the grounds raise several important issues including to what extent an adjudicator in an appeal based solely on human rights grounds should rely on finding made in a previous determination dealing with an asylum claim. The parties will need to address the question, among others, of the relevance to this case of the findings of the European Court of Human Rights in the TI v UK case.” The findings in TI v UK are, as both parties have acknowledged, of no direct relevance to this appeal. They are concerned with return of a Sri Lankan Tamil to Germany; the court did not consider the merits of the claimant's claim that his return to Sri Lanka would breach the Convention; and, in any event, as Miss Giovanetti pointed out, the most recent document before the court dated from 1998.

12

We are, however, concerned with the relevance of findings in a previous determination relating to the same Appellant, and we are concerned with whether this Appellant's return to Sri Lanka would breach the European Convention on Human Rights. Mr Lewis, who appeared for the Appellant, instructed by Tony Purton solicitors, expressly disavowed reliance on Articles 2 and 9, but argued Articles 3, 5, 6, 14 and (for the first time) 8. The Secretary of State was represented by Miss L. Giovanetti, instructed by the Treasury Solicitor. We have been very greatly assisted by the submissions on both sides, and for the orderly way in which the copious documentary material has been presented.

13

We intend no criticism of Mr Lewis, who put all his arguments with his usual elegance and conciseness. We would, however, generally expect that an Appellant who claims that his human rights are threatened, would be able to say, at an early stage, precisely what rights are being threatened. The Human Rights Act 1998 and section 65 of the Immigration and Asylum Act 1999 are intended to protect human rights; and, in appropriate cases, they provided that protection by prohibiting an individual's expulsion. As a result, certain individuals may have a claim to remain in the United Kingdom. But that is not the purpose of the legislation. A claimant who chops and changes between various Articles may raise the suspicion that he is not actually trying to protect any human rights of his but is merely seeking to use whatever means he can to remain in the United Kingdom.

14

The hearing before the Tribunal was on 19 July 2001 and 15 August 2001. There were then further written submissions by the Secretary of State. No date had been fixed for the Appellant's reply to those submissions. No reply has been received.

b. The situation in other European countries
15

One point was unresolved at the hearing and is...

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