R v Secretary of State for the Home Department, ex parte Sivakumaran

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Keith of Kinkel,Lord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Goff of Chieveley
Judgment Date16 December 1987
Judgment citation (vLex)[1987] UKHL J1216-2
Date16 December 1987

[1987] UKHL J1216-2

House of Lords

Lord Keith of Kinkel

Lord Bridge of Harwich

Lord Templeman

Lord Griffiths

Lord Goff of Chieveley

Regina
and
Secretary of State for the Home Department
(Appellant)
Ex Parte Sivakumaran (A.P.)
(Respondent)
Secretary of State for the Home Department
(Appellant)
Ex Parte Vaithialingam (A.P.)
(Respondent)
Secretary of State for the Home Department
(Appellant)
Ex Parte Vilvarajah (A.P.)
(Respondent)
Secretary of State for the Home Department
(Appellant)
Ex Parte Vathanan (A.P.) (by his Next Friend Asokan) and Another (A.P.)
(Respondents)
Secretary of State for the Home Department
(Appellant)
Ex Parte Navaratnam (A.P.)
(Respondent)
(The United Nations High Commissioner for Refugees Intervening)
(Conjoined Appeals)
Lord Keith of Kinkel

My Lords,

1

These appeals are concerned with the question of what is the correct test to apply in order to determine whether six Tamils from Sri Lanka, who arrived in this country on various dates between 13 February and 31 May 1987, are entitled to the status of refugee, so as to be enabled, for the time being at least, to remain here.

2

Each of the Tamils, upon or shortly after his arrival, applied for asylum in the United Kingdom, claiming to be a refugee from Sri Lanka. The Secretary of State for the Home Department refused the applications of three of them on 20 August 1987 and of the other three on 1 September 1987. All six were granted leave to apply for judicial review of the Secretary of State's decisions. On 25 September 1987 McCowan J. dismissed each of the applications, but on 12 October 1987 the Court of Appeal (Sir John Donaldson M.R. Neill L.J. and Sir Roualeyn Cumming-Bruce) [1987] 3 W.L.R. 1047 reversed his judgment and quashed all six decisions. The Secretary of State now appeals, with leave of the Court of Appeal, to this House.

3

The question at issue in the appeals turns upon the proper interpretation of article 1A(2) of the United Nations Convention Relating to the Status of Refugees (Cmd. 9171) dated 28 July 1951. That article, as amended by the Protocol dated 16 December 1966 (Cmnd. 3096), provides that the term "refugee" applies to any person who

"(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; or who, not having a nationality and being outside the country of his former habitual residence …, is unable or, owing to such fear, is unwilling to return to it…"

4

The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law. Rules 16, 73 and 165 of the Statement of Changes in Immigration Rules (1983) (H.C. 169) (made under section 3(2) of the Immigration Act 1971) provide:

"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."

"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 a 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."

In accordance with the provision of the Convention and Protocol Relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can 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 group or political opinion."

5

The critical words in article 1A(2) of the Convention are "well-founded fear" of being persecuted for what may compendiously be called a Convention reason. The Court of Appeal's view of the meaning of these words, as expressed in the judgment of the court delivered by the Sir John Donaldson M.R. [1987] 3 W.L.R. 1047, 1052-1053, was as follows:

"Authority apart, we would accept that 'well-founded fear' is demonstrated by proving (a) actual fear and (b) good reason for this fear, looking at the situation from the point of view of one of reasonable courage circumstanced as was the applicant for refugee status. Fear is clearly an entirely subjective state experienced by the person who is afraid. The adjectival phrase 'weil-founded' qualifies, but cannot transform, the subjective nature of the emotion. The qualification will exclude fears which can be dismissed as paranoid, but we do not understand why it should exclude those which, although fully justified on the face of the situation as it presented itself to the person who was afraid, can be shown objectively to have been misconceived [my emphasis]. A simple, but graphic, example will illustrate our point. A bank cashier confronted with a masked man who points a revolver at him and demands the contents of the till could without doubt claim to have experienced 'a well-founded fear.' His fears would have been no less well-founded if, one minute later, it emerged that the revolver was a plastic replica or a water pistol."

6

The Court of Appeal, in quashing the Secretary of State's decisions, proceeded on the basis that he had interpreted "well-founded fear" as meaning that the applicant for refugee status must establish not only that he in fact feared persecution for a Convention reason, but also that the fear was objectively justified. They held that this was a misinterpretation, and that the Secretary of State should therefore consider the application anew, in the light of what they had decided to be the correct interpretation. It was not found that the applicants were in fact entitled to refugee status. As was made clear by this House in Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] A.C. 514 the decision on that matter was one for the Secretary of State alone, not for the court exercising judicial review.

7

Mr. Laws, for the Secretary of State, argued that, while the existence of a state of fear in the applicant for asylum was clearly a subjective matter, the question whether the fear was well-founded fell to be assessed by the Secretary of State upon an objective basis in the light of facts and circumstances known to him or established to his satisfaction. The test was whether in the light of those facts and circumstances there was a real and substantial risk that the applicant would be persecuted for a Convention reason if returned to the country of his nationality.

8

Mr. Blom-Cooper, for the applicants Vathanan and Rasalingan, did not seriously dispute the correctness of the test propounded by Mr. Laws, but he maintained that the Secretary of State had not applied it in this case. On the other hand Mr. Nathan, for the applicant Navaratnam, and Mr. Beloff, for the remaining three applicants, supported the formulation favoured by the Court of Appeal, as in the main did Mr Plender for the United Nations High Commissioner for Refugees, to whom the House granted leave to intervene.

9

The construction contended for by the appellant finds some support in other provisions of the Convention. Thus section C of article 1 provides that the Convention shall cease to apply to any person falling under the terms of section A if inter alia:

"(5) He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality"

10

— subject to a proviso which does not apply to a person who qualifies as a refugee under article 1A(2).

11

There is a similar provision in paragraph (6) of section C in relation to a person who has no nationality. It is a possible interpretation of these provisions that "the circumstances in connection with which he has been recognised as a refugee" refer only, so far as an article 1A(2) refugee is concerned, to the fact that the person formerly had a well-founded fear of persecution for a Convention reason. But a more likely interpretation is that the "circumstances" contemplated as having ceased to exist are those which caused the original fear of persecution to be well-founded. The question whether such circumstances have ceased to exist can only be one to be determined objectively, in the light of any new circumstances presently prevailing in the country of the person's nationality. It is a reasonable inference that the question whether the fear of persecution held by an applicant for refugee status is well-founded is likewise intended to be objectively determined by reference to the circumstances at the time prevailing in the country of the applicant's nationality. This inference is fortified by the reflection that the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the...

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