R v Secretary of State for the Home Department, ex parte Ravichandran ; R v Secretary of State for the Home Department, ex parte Sandralingham

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date19 April 1996
Neutral Citation[1995] EWCA Civ 16
Date19 April 1996

Court of Appeal

Nourse, Staughton, Simon Brown LJJ

Iyathurai Sandralingham Senathirajah Ravichandran
(Appellants)
and
Secretary of State for the Home Department
(Respondent)
Joseph Lawrence Rajendrakumar
(Applicant)
and
Immigration Appeal Tribunal Secretary of State for the Home Department
(Respondents)

I Macdonald QC and I Lewis for the appellants and applicant

N Pleming QC and R Jay for the respondents

Cases referred to in the judgments:

R v Immigration Appeal Tribunal ex parte WeerasuriyaUNK [1983] 1 All ER 195: [1982] Imm AR 23.

R v Immigration Appeal Tribunal ex parte KotechaUNK [1983] 2 All ER 289: [1982] Imm AR 88.

R v Immigration Appeal Tribunal ex parte Jonah [1985] Imm AR 7.

Sivakumaran and ors v Secretary of State for the Home DepartmentELR [1988] AC 958: [1988] Imm AR 147.

Thirunavukkarasu v Minister of Employment and Immigration [1993] 190 DLR (4th) 682.

R v Immigration Appeal Tribunal ex parte Rajendrakumar [1995] Imm AR 385.

Political asylum — Sri Lanka — round-up of young male Tamils in Colombo — whether that constituted persecution — history of ill-treatment during detentions following round-ups — whether the possibility of ill-treatment gave rise to a well-founded fear of persecution — whether in consequence young male Tamils arriving from Colombo were entitled per se to refugee status. HC 725 paras. 180B, 1801; International Covenant on Civil and Political Rights (1966) paras. 4(1), 4(3), 9(1); United Nations Convention relating to the status of refugees (1951), Protocol (1967) arts. 1A(2), 33(1); UNHCR Handbook on procedures and criteria for determining refugee status para. 51; (Sri Lanka) Prevention of Terrorism (Temporary Provisions) Act 1979 s. 6(1).

Political asylum — date for determining on appeal the validity of the claim — whether the appellate authorities were restricted to considering circumstances at the date of the Secretary of State 's decision — whether changes in circumstances at the date of hearing were to be taken into account. Immigration Act 1971 s. 19; Asylum and Immigration Appeals Act 1993 s. 8(1); HC 725 para. 180B; United Nations Convention relating to the status of refugees (1951), Protocol (1967) art. 1C(5).

Appeals by two citizens of Sri Lanka against the dismissal by the Tribunal of their appeals against determinations of a special adjudicator upholding the decisions by the Secretary of State that they did not qualify for asylum: the third citizen of Sri Lanka had made a renewed application for judicial review of the refusal by the Tribunal to grant leave to appeal from an adjudicator's dismissal of his appeal.

All these cases raised essentially the same issue. All three appellants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to Colombo. It was asserted that even in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore subject to the security round-ups of young male Tamils in Colombo which occurred when the security forces were faced with Tamil terrorist activity in the city: when rounded up and in detention, they were subject to ill-treatment which amounted to persecution. The adjudicators and the Tribunal had rejected the proposition that young male Tamils as a class and per se all had a well-founded fear of persecution and qualified for asylum. The Tribunal had concluded that in Colombo ill-treatment of those rounded up had significantly declined and was not endorsed by the government.

In the case of Rajendrakumar, in refusing leave to move for judicial review, Laws J had expressed the view that the appellate authorities, in political asylum appeals, were obliged to consider relevant circumstances at the date of hearing and were not, as in the generality of immigration appeals, confined to considering the facts at the date of the decision under appeal.

Held

1. The question whether circumstances gave rise to a well-founded fear of persecution had to be looked at in the round.

2. In the relevant case the frequency and true purpose of the round-ups had to be considered in the light of the need to combat terrorism.

3. It had been a critical time in Colombo: the loss of liberty was relatively limited: the purpose of the round-ups was not the oppression of Tamils per se but the maintenance of public order.

4. The round-ups did not constitute persecution albeit it may be that they were unlawful, which the court did not condone.

5. There was evidence that the treatment of suspects in detention had improved and in assessing that, the appellate authorities were entitled to take into account developments after the date of decision by the Secretary of State.

6. The provisions of the 1993 Act overrode the provisions of the 1971 Act insofar as in political asylum appeals it was necessary to look to the future and thus the appellate authorities were not restricted to facts in existence at the date of decision: Weerasuriya and Kotecha distinguished.

7. Per Staughton LJ: the position in Colombo must be borne in mind, ‘we should not seek to discriminate too nicely as to what is and what is not the appropriate response of the forces of law and order in such circumstances. Persecution must at least be persistent and serious ill-treatment without just cause by the state or from which the state can provide protection but chooses not to do so.’

Simon Brown LJ: The three appellants are young male Tamils, aged respectively 25, 26 and 30. All came to the United Kingdom from Sri Lanka in 1993. All were refused asylum by the Secretary of State and have since had their appeals rejected by the appellate authorities. For convenience I call them all appellants although one, Rajendrakumar, is strictly an applicant, having obtained leave to move for judicial review from the Court of Appeal which reserved the case to itself. Rajendrakumar seeks to quash the Immigration Appeal Tribunal's decision refusing him leave to appeal against the adverse determination of a special adjudicator, Mr O'Brien Quinn, dated 1 February 1995. The other two appellants appeal by leave of the Court of Appeal against the Tribunal's decision dated 19 January 1995 dismissing their appeals against adverse determinations of a special adjudicator, Mr Rapinet, dated 17 August 1994.

Given the particular arguments raised upon these appeals, the individual circumstances of the three appellants are of little materiality. Rather it is contended that because of the findings of fact common to all three cases as to the general situation of young male Tamils in Colombo, everyone in this category claiming refugee status is entitled to asylum. It is a wide submission but Mr Macdonald QC does not shrink from it. He contends that as matters now stand in Sri Lanka (or certainly as matters stood in 1993), widespread persecution of Tamils on Convention grounds is made out on the facts. Once Sri Lanka stabilises, he submits, there can be international agreement for the repatriation of refugees, of the kind ultimately arranged with North Vietnam. That, however, is for the future.

As to the facts, there are two aspects of the general situation at present. One concerns periodic round-ups of young male Tamils who are arrested and detained for questioning and thereby lose their freedom for some days. The other concerns their treatment under investigation, those detained having on occasions been subjected to ill-treatment. The appellants assert that each aspect independently amounts to persecution and both are relied upon here.

Two other arguments are advanced on these appeals, one of considerable general importance regarding the date at which the appellate authorities should assess the facts in asylum cases, but these I shall come to later having first dealt with the critical central point.

Before turning to the facts it is convenient at once to set out the governing provisions of the 1951 Convention relating to the status of refugees (as amended by the 1967 Protocol), and the relevant immigration rules.

The 1951 Convention

Article 1A(2) defines a ‘refugee’ as any person 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…’

Article 33(1) provides:

‘No Contracting State shall expel or return (“refouler”) a refugee 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.’

Immigration rules

HC 725 (effective from July 1993) provides so far as material:

‘180B. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied:

  1. a. he is in the United Kingdom…; and

  2. b. he is a refugee, as defined by the Convention and Protocol; and

  3. c. refusing his application would result in his being required to go, (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

(Although not strictly relevant to the present appeals, it may be noted that the introduction of sub-paragraph (c) into the rule alters the previous position as established by R v Secretary of State for the Home Department ex parte SivakumaranELR [1988] AC 958 per Lord Goff at 1001: it is now necessary for the claimant to satisfy the Secretary of State both that he is a refugee and that his return would threaten his life or freedom and not merely some lesser human right.)

‘180I.…If there is part of the country from which the applicant claims to be a refugee...

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