R (Sivakumar) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL,LORD STEYN,LORD HOFFMANN,LORD HUTTON,LORD RODGER OF EARLSFERRY
Judgment Date20 March 2003
Neutral Citation[2003] UKHL 14
Date20 March 2003

[2003] UKHL 14

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Hoffmann

Lord Hutton

Lord Rodger of Earlsferry

Regina
and
Secretary of State for the Home Department
(Appellant)
and
ex parte Sivakumar (FC)
(Respondent)
LORD BINGHAM OF CORNHILL

My Lords,

1

I am in complete agreement with the opinion of my noble and learned friends Lord Steyn and Lord Hutton, which I have had the advantage of reading in draft, and for the reasons which they give I would dismiss the appeal and make the order which Lord Steyn proposes.

2

I am also in very substantial agreement with the careful and well-reasoned judgment given by Dyson LJ in the Court of Appeal: [2001] EWCA Civ 1196; [2002] INLR 310. I can well appreciate the concern of the Secretary of State if the Court of Appeal were understood to be laying down a rule of thumb or presumption to be applied in cases of this kind. That would be a wrong approach, since attention must always be focused on the position of the individual applicant and the peculiar facts of his or her particular case. I do not however think that Dyson LJ was purporting to lay down any rule or presumption: he was simply expressing a conclusion which was in my opinion, on the facts here, abundantly justified.

LORD STEYN

My Lords,

3

On this appeal from a decision of the Court of Appeal the issue is whether a special adjudicator adopted the correct approach in law to the question whether an applicant for refugee status had a well-founded fear of persecution within the meaning of article 1A of the Geneva Convention on the Status of Refugees (1951).

4

In the United Kingdom effect is given to the 1951 Convention relating to the Status of Refugees by the grant of asylum. Under paragraph 334 of the Immigration Rules (HC 395) an asylum applicant will be granted asylum only if the Secretary of State "is satisfied that" he is a refugee as defined by the Convention. An applicant who does not meet that criterion will be refused: see paragraph 336. A refusal of asylum may be appealed on the ground that it would be "contrary to the Convention" to refuse the applicant leave to enter or to require him to leave the United Kingdom: see section 69 of the Immigration and Asylum Act 1999.

5

Article 1A of the Convention defines a "refugee" as:

"any person … (2) … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, 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; …"

For present purposes the question is whether the applicant had a well-founded fear of being persecuted for reasons of race, membership of a particular social group or political opinion. Article 1F of the Convention provides:

"The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

It was common ground that article 1F and in particular 1F(b), is not applicable.

6

The applicant arrived in the United Kingdom in 1997. He applied for asylum. In 1998 his claim was dismissed. He was then aged 24 years. He is a Tamil from Jaffna in the north of Sri Lanka, the main centre of the terrorist activities of LTTE or the Tamil Tigers. Before the special adjudicator there was a synopsis of a US State Department Report of 1999 (for the year 1998) on the position in Sri Lanka. It included the following passage:

"despite legal prohibitions, the security forces continue to torture and mistreat persons. They continue to torture and mistreat detainees (male and female) particularly during investigation. Most torture victims are Tamils suspected of being LTTE insurgents or collaborators."

Subject to an immaterial exception, the special adjudicator accepted the account of the primary facts given by the applicant. His evidence was that, although he was not an LTTE sympathiser or supporter, he had been detained and ill-treated by authorities in Sri Lanka. The special adjudicator did not comment in any way on the severity of the ill-treatment and did not describe it as torture. This is how he described the position in his conclusions:

"There is no particular reason not to accept the appellant's evidence, except about setting off for a completely unknown destination, rather than stay in Colombo: that is absurd, particularly given the large sum his family had paid for the trip. However, on the appellant's own account he was detained and ill-treated in the past on the various occasions he mentions.

10.2 on suspicion of training Tamil Tigers

16.4 on suspicion of being a Tiger

25.2 for being a 'black Tiger'.

Unpleasant though the consequences were, they were not the result of any political opinions he might have been thought to hold, but of being suspected, however unjustly, of involvement in violent terrorism. That does not in my view come within the protection of the Convention, and there is nothing else in the evidence to show that he in particular would face persecution if returned to Sri Lanka: it was not argued that northern Tamils in general would do so; nor should I accept that, for the reasons given at paragraph 2 above."

(Emphasis supplied)

It may not be unfair to say that the italicised words prima facie indicate that the severity of the ill-treatment in this case made no significant impact on the special adjudicator's approach to the case. In any event, he dismissed the claim to asylum.

7

Cases involving claims for refugee status under the Convention are particularly fact-sensitive. The severity of the treatment inflicted on the applicant by the authorities in Sri Lanka has a logical bearing on the issues. Why this is so can readily be demonstrated. The important UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979) explains, at p 610, para 85:

"there may be reason to believe that a political offender would be exposed to excessive or arbitrary punishment for the alleged offence. Such excessive or arbitrary punishment will amount to persecution."

The Court of Appeal held in the present case that the second sentence is phrased too strongly: p 318, para 26 of the judgment of the Court of Appeal. For "will" one should substitute "may". Subject to this qualification the guidance is valuable. If excessive or arbitrary punishment may tip the scales in favour of a conclusion that there was persecution meriting protection under the Convention, it must follow that if agents of the state inflict brutal torture on persons suspected, fairly or unfairly, of involvement in terrorism, that may equally engage the protection of the Convention. Since the special adjudicator did not describe the primary facts relating to the ordeal suffered by the applicant in Sri Lanka, I must set out the facts in explicit but necessary detail.

8

The facts found by the special adjudicator, and accepted by the Home Secretary, are as follows. In 1993 the applicant travelled to the east coast of Sri Lanka to work at a mill owned by his brother-in-law. In the latter part of 1994, the Tamil Tigers came and took his brother-in-law away. They also took a lorry belonging to his brother-in-law, which was used to carry out an attack on a nearby army camp. The lorry was traced back to the mill. A military Special Task Force took the applicant away and detained him in a house near a beach. On arrival at the house he was attacked by three soldiers, and told that when the officer arrived, he was to say that he was a member of the Tamil Tigers and that he had come south to attack the army camp. He was detained for about a month. Throughout his detention, except when he was eating, his hands were tied behind his back. He was kept in a room with other detainees. They were not allowed to speak amongst themselves. He was regularly tortured. He was stripped naked and taken to a beach, where he was made to roll in the hot sand. He was tied, naked, with his back to a tree. One of the soldiers ground hot sand into his penis. He was left there for the whole day. Cigarettes were stubbed out on his arms. In the house he was beaten on his lower back and on his heels with a pipe filled with sand. He and other detainees were kicked and their knees beaten with rifle butts. On one occasion, an officer attacked him with kicks and punches which broke his nose. He fainted as a result of the pain. The applicant was also forced to witness others being tortured. Another detainee was tied face first to a tree and a bottle was forced into his anus. Others were cut all over their bodies with razor blades. The applicant and other detainees were forced to watch people being burned on the beach. He was not sure whether the people were dead before burning tyres were put around them. After about a month a bribe secured the applicant's release from detention.

9

In about April 1996, the applicant and his brother started working at a co-operative society establishment. From time to time, he transported goods on a lorry. When the lorry left it would be stopped at a checkpoint. At the checkpoint, a hooded informer sat in a sentry box. In June 1997 the applicant was identified as a Tamil Tiger by the informer. He was thrown into the back of an army jeep and his hands were tied behind his back. He was taken to an army camp. On...

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  • Race and Law in Fortress Europe
    • United Kingdom
    • The Modern Law Review Nbr. 67-1, January 2004
    • 1 January 2004
    ...anoption?(Brussels: Migration Policy Group,20 02).17 Horvath vHome Secretary [2001] 1 AC 489, HL (E).18 R (Sivakumar) vHomeSecretary[2003] 1WLR 840, HL CE),per Lord Steyn at 846 approvingDysonLJ [2002]INLR 320^321.19 A similar co nfusion is evident in M. Harris, Tomorrow is Another Country(......

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