R v Secretary of State for the Home Department, ex parte Sivakumaran
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 12 October 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1012-1 |
| Docket Number | 87/0970 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 1987 |
And
[1987] EWCA Civ J1012-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Neill
Sir Roualeyn Cumming-Bruce
87/0970
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
(MR JUSTICE McCOWAN)
Royal Courts of Justice
MR K. S. NATHAN, Q.C., and MR GEORGE WAUGH, instructed by Messrs Chatwani & Co. (Southall), appeared for Navaratnam.
MR ANDREW COLLINS, Q.C., and MR NICHOLAS BLAKE, instructed by Messrs Winstanley-Burgess, appeared for Vathanan and Rasalingam.
MR ALPER RIZA, instructed by Messrs Winstanley-Burgess, appeared for Sivakumaran, Vilvarajah and Vaithialingam.
MR ROGER TER HAAR, instructed by The Treasury Solicitor, appeared for the Respondent (Respondent).
This is the judgment of the court.
On 25th September 1987 Mr Justice McCowan dismissed applications for judicial review by six Tamils who are nationals of Sri Lanka. The decisions sought to be reviewed were that their applications for asylum in the United Kingdom he dismissed and that arrangements be made for their removal to Sri Lanka.
Every such application is entitled to individual consideration and the circumstances affecting each were not identical. However, the immigration policy framework is the same in each case and it is conceded that if the Secretary of State has misdirected himself in his application of that policy, the orders should be set aside in order to give him an opportunity to re-examine each case afresh in the light of our judgment. We therefore turn at once to that issue.
The relevant policy is set out in the Statement of Changes in Immigration Rules (1983) (H.C. 169). There are parallel rules applying to "Control on Entry" and "Control after Entry" contained respectively in section 1 and section 2. Since all the applicants sought asylum upon entry, we are concerned only with section 1, the relevant rules being contained in paragraphs 16 and 73:
"Refugees
"16. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd. 9171 and Cmnd. 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments.
"Part VII: asylum
"73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees."
The United Kingdom is a signatory to the Convention and Protocol ("The Convention"), but it forms no part of the domestic law of this country. Nevertheless, as one would expect, the immigration rules are framed on the basis that the Secretary of State will give effect to its provisions.
Subject to certain exceptions which are immaterial for present purposes, Article 1 defines a "refugee" as being one who:
"…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; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
In succeeding Articles the Convention provides something in the nature of a "Bill of Rights" for those who have refugee status, but nowhere does it in terms grant them a right of asylum. What it does do is to limit the freedom of a contracting state to expel a refugee lawfully in its territory (Article 32) and to prohibit his expulsion or return "to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion" (Article 33).
There is a clear contrast between the pre-conditions for acquiring the status of refugee, which require a well-founded fear of persecution and for the application of Article 33 which requires a threat to the life or freedom of the person concerned....
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