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

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD WOOLF, MR
Judgment Date11 Jul 1997
Judgment citation (vLex)[1997] EWCA Civ J0711-4
Docket NumberFC3 96/7394/D

[1997] EWCA Civ J0711-4

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

Royal Courts of Justice

Strand

London WC2

Before:

The Master of The Rolls

(Lord Woolf)

Lord Justice Potter

Lord Justice Brooke

FC3 96/7394/D

In The Matter of an Application for Judicial Review

Regina
and
Secretary of State for The Home Department
Immigration Appeals Tribunal
Ex Parte Anthonypillai Francis Robinson

MR N BLAKE QC and MR R HUSAIN (Instructed by Nathan & Co, London SW19 1LX) appeared on behalf of the Appellant.

MR D PANNICK and MISS A FOSTER (Instructed by The Treasury Solicitor, London SW1H 9JS)) appeared on behalf of the Secretary of State.

MR M SHAW (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Immigration Appeal Tribunal.

LORD WOOLF, MR
1

This appeal raises three points of general importance. The first is the scope of what is now often called "the internal flight alternative." This is linked with the definition of "refugee" in the 1951 Geneva Convention relating to the Status of Refugees, as amended by the 1967 Protocol (which we will call "the Convention"). The second is whether the appellate authorities handling appeals under the Asylum and Immigration Appeals Act 1993 have jurisdiction to consider issues relating to the internal flight alternative. The third relates to the scope of the duty, if any, on the Immigration Appeal Tribunal to consider issues which are not apparent on the face of a Notice of Appeal when it decides whether to grant leave to appeal from a decision of a Special Adjudicator.

2

The facts of the case are very similar to those which have frequently had to be considered by the appellate authorities in recent years in cases concerned with Tamils from northern Sri Lanka who seek asylum in this country. The present applicant was born in Sri Lanka, of Tamil ethnic origin, in September 1967. He grew up in the Jaffna area, and he was detained by Sri Lankan security forces and the Indian peace-keeping force on three occasions between 1984 and May 1988. One of his uncles, who was then a Roman Catholic priest, was at one time wanted by Sri Lankan authorities on suspicion of supporting the Tamil separatist movement: this uncle left Sri Lanka following his detention in 1983 and was subsequently recognised as a refugee in the United Kingdom. By 1988 the LTTE (the Tamil Tigers) were the de facto authority in Jaffna, and they required the applicant to help them in their campaign against the Sri Lankan Government. In May 1991 his family home was destroyed by Sri Lankan forces, and he had to go and live with his parents in a refugee camp run by priests. For the next two years the LTTE required him to undergo military training and to join their forces, although he was reluctant to do so.

3

In April 1993 he left Jaffna and travelled to Colombo. He stayed with a friend for about a fortnight until the incident in which President of Sri Lanka was assassinated by Tamil militants on 1st May 1993. He had given his mother's jewellery to his friend to pay for his support, and he paid the balance left over from the sale of this jewellery to an agent who helped him to leave the country. After the President's death the security measures against young Tamils were stepped up, and on 4th May 1993 he was detained by the security forces for five days on suspicion of being a member of the LTTE. He was beaten, but later released without charge. He then went into hiding, and stayed at a number of short term addresses until his departure from Sri Lanka could be arranged the following month, when he travelled to this country by air via Abu Dhabi and claimed asylum on arrival.

4

His asylum application was refused on 11th April 1995 and he was refused leave to enter on 22nd April 1995. He appealed to a Special Adjudicator, but on 13th March 1996 a Special Adjudicator, Mr Latter, dismissed his appeal. On 11th April 1996 the Immigration Appeal Tribunal refused leave to appeal. He then applied for leave to apply for judicial review of the Tribunal's decision to refuse leave to appeal, but on 10th May 1996 Popplewell J dismissed this application after an oral hearing. On 11th October 1996 this court granted him leave to renew his application for judicial review and directed that the substantive hearing should take place before this court since it raised procedural issues of general contemporary importance.

5

The Special Adjudicator had found the applicant and his supporting witness, the uncle to whom we have referred, to be credible witnesses. He held that the mere fact of the applicant's past connection with the Tamil Tigers would not, ipso facto, lead to a risk of persecution, and that he therefore had to consider whether there was a particular or special factor in the applicant's background which could put him at unusual risk. He did not consider that the risk of repeated detention by the security forces in Colombo, when searching for suspected terrorists, constituted persecution within the meaning of the Convention. He went on:

"I do not think there is any serious possibility that the appellant can be regarded as having a special characteristic by reason of the fact that he is his uncle's nephew which means that he is likely to be treated differently from other Tamils of his age and background living in Colombo or other areas controlled by the Sri Lankan government. I accept the appellant could not reasonably be expected to return to an area controlled by the LTTE. There is a risk that he would be recruited by them against his will to support them. The issue is whether the appellant can safely return to an area controlled by the Sri Lankan authorities. In my view the appellant is not at particular or unusual risk compared with other Tamils in Colombo. He does not satisfy me that he has a well-founded fear of persecution."

6

The Special Adjudicator ended by saying that he was sure that in the light of the current situation in Sri Lanka the Secretary of State would give careful consideration as to whether or not the applicant should be granted a period of exceptional leave to remain. In this context he mentioned the fact that the applicant had only been in Colombo for a few days before he was arrested and that he then moved from place to place before leaving Sri Lanka; that he has no relatives in Colombo and does not know where his parents are; and that his uncle lives in this country, where he has been granted asylum, and that he also has a grandmother, two uncles and two aunts living here. It is a central feature of Mr Blake's submissions that the Special Adjudicator should have taken considerations of this kind into account when deciding whether the applicant was a refugee as defined by the Convention (see paragraph 334(ii) of the Immigration Rules (HC 395 of 1994)) and that he should not merely have left them as matters for the Secretary of State to consider when determining whether to grant the applicant exceptional leave to remain outside the Immigration Rules.

7

Arguments of this kind were not, however, included in the Grounds of Appeal to the Immigration Appeal Tribunal, which were settled by his solicitors. These were limited to issues relating to the applicant's safety if he was returned to Colombo, and arguments concerned with deficiencies in the reasoning of the Special Adjudicator. The Tribunal's chairman did not therefore allude to them in the short reasons he gave for refusing leave to appeal. Mr Blake, however, contends that the Tribunal was wrong when it said that the Special Adjudicator "concluded that the applicant could safely return [to Colombo] and it would be reasonable for him to do so". He said that the Special Adjudicator did not express himself in these terms, so far as questions of reasonableness were concerned, and that if he had considered questions of reasonableness as a freestanding issue, there were more matters that he should have taken into account, and this raised questions fit for argument at a substantive hearing before the Tribunal.

The definition of refugee and the "internal flight alternative"

8

The 1951 Convention conferred special status on a person recognised as a refugee within the meaning of the Convention. Chapter II of the Convention sets out the juridical status of a refugee. Chapter III prescribes the conditions on which refugees are entitled to enjoy gainful employment, Chapter IV their welfare entitlements, and so on. In particular, so long as they are recognised as refugees, they may not be expelled from the territory in which they are lawfully present save on grounds of national security or public order, and even then only after due process of law (see Article 32), and in any event a refugee may not be expelled or returned "in any manner whatsoever" 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). In R v Home Secretary ex p Sivakumaran [1988] AC 958 Lord Goff of Chieveley said at p 1001C that it was plain that the non-refoulement provision in Article 33 was intended to apply to all persons determined to be refugees under Article 1 of the Convention.

9

It is therefore to Article 1 that we must turn to see who is entitled to the benefits conferred by the Convention. Article 1A provides, so far as is material, that for the purposes of the Convention, the term 'refugee' is to apply 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...

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