Nalliah Karanakaran v Secretary of State for The Home Department

JurisdictionEngland & Wales
Judgment Date25 January 2000
Judgment citation (vLex)[2000] EWCA Civ J0125-2
Docket NumberCase No: IATRF 99/0759/C
CourtCourt of Appeal (Civil Division)
Date25 January 2000

[2000] EWCA Civ J0125-2


lord Justice Brooke

Lord Justice Robert Walker and

Lord Justice Sedley

Case No: IATRF 99/0759/C





Royal Courts of Justice


London, WC2A 2LL

Ian Lewis (instructed by Gill & Company for the Appellant)

Lisa Giovannetti (instructed by Treasury Solicitor for the Respondent)

Tuesday, 25 January 2000


This is an appeal by Nalliah Karanakaran from an order of the Immigration Appeal Tribunal dated 8th April 1999 whereby it dismissed his appeal from an order of a special adjudicator dated 2nd June 1998 dismissing his appeal from removal directions dated 21st February 1996. These followed a decision of the Secretary of State dated January 1996 refusing his application for asylum. On 21st February 1996 a notice of refusal of leave to enter this country was served on him, together with the directions for his removal to Sri Lanka.

On 23rd February 1995 he left Sri Lanka and travelled to this country via Singapore, which he left on 4th March 1995, and Mauritius. He arrived here on 5th March 1995 and claimed asylum on his arrival.

"I acknowledge that the appellant does not speak Sinhalese, and that he has no home or job to which to go in Colombo, but that does not alone indicate that it would be unreasonably harsh for him to be returned there. There are many thousands of Tamils living safely in Colombo. Some are Colombo residents of long standing but many others are refugees from the north. This appellant is now aged 20. There is no evidence to suggest that he would be of any interest to the authorities. There is nothing to single him out, or to sustain a well-founded fear for any Convention reason. I am satisfied that it would not be unduly harsh for him to be returned."

For the purposes of his appeal from this decision the appellant placed before the Immigration Appeal Tribunal the written opinions of four people who had expert knowledge of conditions in Sri Lanka.

In the circumstances Dr Moore judged that there was a serious possibility that the appellant would be harmed in Colombo if forced to return to Sri Lanka.

The test set out in Robinson [1998] QB 929 involved investigating whether it would be unduly harsh to send the appellant to Colombo. For the experts to say that he had no friends, family or close contacts living in Colombo, that he did not speak Sinhalese, and would experience hardship in seeking shelter and work upon his return, were not considerations which the tribunal should take into account in view of what was held in Robinson.

"As we see this case, while the appellant may encounter certain difficulties in finding housing and employment in Colombo and while he may be rounded up and questioned by the police as a young Tamil, he has not shown, in any way, that it would be 'unduly harsh' or 'unreasonable' for him to return to live in Colombo; it is, after all, the capital of his own country, it is populated by a large number of Tamils and Tamil-speaking people, and the authorities there are committed to the suppression of the LTTE."

The tribunal then turned to the question of the standard of proof to be applied in considering whether or not it would be unduly harsh or unreasonable for the appellant to be returned to, or be required to live in, Colombo. It cited the second half of paragraph 28 and the whole of paragraph 29 of the judgment of this court in Robinson, before concluding in these terms:

"Accordingly … we are of the view that it is not necessary to decide whether the Sivakumaran standard should apply or the 'balance of probabilities' [standard] should apply, as what was held by the Court of Appeal was that the Tribunal, or the Court, having the internal flight alternative issue before it, should decide what is reasonable, in all the circumstances, as the operative words in paragraph 343 [of HC 395] are 'the application may be refused'.

As we see the situation, following Robinson, a common-sense approach rather than a legalistic or formulaic approach, should be adopted, and the Tribunal or the special Adjudicator dealing with the matter, having weighed up all the evidence, should take into account all the appropriate factors, as set out in Robinson, and decide what is reasonable in all the circumstances."

Applying that approach, the tribunal found it would not be unduly harsh to expect the appellant to be required to return to or live in Colombo. It therefore dismissed the appeal.

This appeal once again raises questions relating to what has been called the "internal flight alternative" in asylum law. It is also variously described as "internal relocation" or the "internal protection principle". It comes into play when conditions in one part of a country are such that there is a serious possibility that an asylum-seeker would face persecution for a Convention reason if sent back there, but there are other parts of that country where the same concern would not arise.

In English courts and tribunals the appropriateness of internal relocation has been a fairly familiar topic for debate in cases involving Tamils, and particularly young Tamil men, who grew up in the northern part of Sri Lanka and are afraid to go back there. In Ravichandran [1996] Imm AR 97 this court held that the fact that young male Tamils in Colombo were often rounded up by the security forces when there was terrorist activity in that city could not be equated with persecution for a Convention reason. During a critical time in Colombo the loss of liberty was relatively limited, and the purpose of the round-ups was not the oppression of Tamils per se but the maintenance of public order.

Since the decision in Ravichandran, it has often been argued in cases of individual asylum-seekers from Sri Lanka (and, indeed, from other countries) that the alternative destination to which they are to be sent back does not provide the quality of internal protection that the Geneva Convention demands, and that they are therefore still properly to be recognised as refugees.

This argument turns on the correct interpretation of a few words contained in the definition of "refugee" in Article 1A(2) of the Convention, being any person who

"… owing to well-founded fear of being persecuted [for a Convention reason] is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." (Emphasis added).

The words I have italicised have not been interpreted literally. In theory it might be possible for someone to return to a desert region of his former country, populated only by camels and nomads, but the rigidity of the words "is unable to avail himself of the protection of that country" has been tempered by a small amount of humanity. In the leading case of Robinson [1998] QB 929 this court followed an earlier decision of the Federal Court of Canada and suggested that a person should be regarded as unable to avail himself of the protection of his home country if it would be unduly harsh to expect him to live there. Although this is not the language of "inability", with its connotation of impossibility, it is still a very rigorous test. It is not sufficient for the applicant to show that it would be unpleasant for him to live there, or indeed harsh to expect him to live there. He must show that it would be unduly harsh. (For an interpretation of the word "unduly" in the context of the statutory phrase "unduly lenient" see Attorney-General's Reference (No 15 of 1990) 92 Cr App R 194 per Lord Lane CJ at pp 198–199).

The issue that has arisen for decision in this case relates to the method of establishing whether it would be unduly harsh to expect an asylum-seeker to live in a different part of his own country. As with the cases which preceded Robinson there have been conflicting decisions at tribunal level. One division of the tribunal, headed by Judge Pearl, its former president, has held that the applicant has to show on the balance of probabilities that it would be unduly harsh to send him back to that part (see Manohoran [1998] Imm AR 455). Another division, headed by Professor Jackson, a vice-president of the tribunal, decided eight months later that the applicant merely has to show that there would be a serious possibility that it would be unduly harsh for him to be returned there (see Sachithananthan [1999] INLR 205). We have been told that different divisions of the tribunal have applied one or other version of these two conflicting tests, and that there are about ten cases in this court awaiting the outcome of this appeal. It is pleasant to record that despite the volume of business in this court and the incidence of the long vacation, we have been able to hear this appeal within five months of the lodging of the notice of appeal in the Civil Appeals Office.

As I shall describe, the issues we had to decide on this appeal were significantly increased as a result of certain observations made in the judgments in another division of this court in Horvath (CAT 2 December 1999) which were handed down the day after the initial hearing of this appeal was concluded. For the time being, however, I will limit myself to the issues we were initially invited to consider.

It is necessary to start this part of this judgment by saying something about previous decisions in both England and Canada which relate to different aspects of the standard of proof in asylum cases. Later in the judgment I will review the course the law has taken in recent years in...

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