Subesh, Suthan, Nagulananthan and Vanniyasingam and The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Judge,Lord Justice Laws
Judgment Date17 March 2004
Neutral Citation[2004] EWCA Civ 56
Docket NumberCase Nos C1/2003/2028,C1/2003/1438, C1/2003/1402 & C1/2003/2451
CourtCourt of Appeal (Civil Division)
Date17 March 2004
Between :
Subesh, Suthan, Nagulananthan and Vanniyasingam
Appellants
and
The Secretary of State for the Home Department
Respondent

[2004] EWCA Civ 56

Before :

LORD JUSTICE JUDGE

LORD JUSTICE LAWS and

LORD JUSTICE MAURICE KAY

Case Nos C1/2003/2028,C1/2003/1438, C1/2003/1402 & C1/2003/2451

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE IMMIGRATION

APPEAL TRIBUNAL

Royal Courts of Justice

Strand,

London, WC2A 2LL

Miss Shivani Jegarajah (instructed by MK Sri & Co) for Subesh (1 st appellant), Suthan (2 nd appellant) and Nagulananthan (3 rd appellant)

Miss Rhiannon Crimmins (instructed by MK Sri & Co) for Vanniyasingam (4 th appellant)

Miss J Anderson (instructed by TheTreasury Solicitors) for the Secretary of State for the Home Department

Lord Justice Judge

Lord Justice Laws will give the judgment of the court.

Lord Justice Laws

INTRODUCTORY

1

This is the judgment of the Court. These conjoined appeals are brought against four decisions of the Immigration Appeal Tribunal ("the IAT"). In each case the IAT allowed an appeal of the Secretary of State against an earlier determination by the Adjudicator allowing an appeal against the Secretary of State's decision rejecting the appellant's asylum and/or human rights claims and consequently refusing him leave to enter or remain in the United Kingdom. Each appellant is a Tamil asylum-seeker from Sri Lanka.

2

In Nagulananthan (we hope it will be thought no discourtesy if we refer to him as "N") permission to appeal to this court was granted by Brooke and Clarke LJJ on 9 September 2003 after earlier refusal by Sedley LJ on consideration of the papers. In Subesh permission was granted by Sedley LJ on 15 August 2003. In Suthan permission was first refused on the papers by Carnwath LJ but granted by Scott Baker LJ after a hearing on 14 November 2003. In Vanniysingam (whose name we shall also abbreviate, to "V") permission to appeal to this court was granted on 29 October 2003 by HHJ Holden who had presided over the IAT in that case. The appeals were listed together as an appropriate means for the court to resolve what were perceived to be two distinct but related important points of principle concerning the jurisdiction and functions of the appellate authorities, that is to say the Adjudicators and the IAT, arising under provisions contained in the Immigration and Asylum Act 1999 ("the 1999 Act"). The first of these may be formulated by this question: what if any are the constraints or restrictions upon the power or duty of the IAT to overturn conclusions of fact arrived at by the Adjudicator? The second concerned the proper response of Adjudicators to the decision of the IAT in Jeyachandran [2002] UKIAT 01689, in which it was stated (paragraph 8):

"… [I]n the present situation and having regard to the present trends it is only the exceptional cases [sc. of failed Tamil asylum-seekers from Sri Lanka] that will not be able to return in safety."

This second issue appeared to consist in the question whether (in a Tamil case) an Adjudicator's failure to refer to the Jeyachandran decision, or his failure clearly to follow what has been referred to – with scant regard to the hurt done to the English language – as the "exceptionality" test prescribed in that decision, would amount to an error on the Adjudicator's part so as to justify the IAT's intervention on appeal. It will be necessary to set out fuller citations from the text of Jeyachandran, and we will do so directly. But we should say at this stage that on reflection this putative second issue is not, in our judgment, a separate issue at all. It serves only as a concrete instance by which to illustrate the first or (as we shall now call it) the primary issue.

3

We should also record the fact, well-known though it is, that by virtue of s101 of the Nationality, Immigration and Asylum Act 2002 appeals to the IAT from adjudications promulgated since June 2003 will be confined to points of law; and that the government proposes to seek further legislation in Parliament which, if enacted and effective, will work far-reaching changes to the way in which decisions of the Secretary of State in immigration matters may be tested by an independent judicial body. The issues arising in these appeals may therefore become historic. Presently, however, they are not without some public importance.

THE BACKGROUND: JEYACHANDRAN

4

The background to all these cases, and (as is well known) to very many others also, has been the internecine struggle between Tamils and Sinhalese in Sri Lanka, and in particular between the LTTE (the "Tamil Tigers") and the Sri Lankan authorities; and the efficacy of the peace process which has evolved in that country since January 2000. Before summarising the facts in the individual appeals it is useful to canvass this aspect of the background position, at any rate as it appeared to the IAT in June 2002. We may conveniently do so by reference to the case of Jeyachandran itself, in which the IAT heard argument on 21 May 2002 and promulgated its decision, given by the then President, Collins J, on 10 June 2002. We must include some passages in which the IAT deal with the facts of the particular case, for these will be material when we come to the point of principle engaging Jeyachandran.

5

The appellant in Jeyachandran was a Tamil who, as the Chief Adjudicator had found, was on a wanted list. The IAT considered (paragraph 3) that he was

"… someone who if returned to Sri Lanka, will be likely to be recognised when his identity is examined on return as someone who is wanted by the authorities. Until recently that would have undoubtedly have created a real risk of some lengthy interrogation… and there would have been a real risk that he would be tortured in the course of that investigation.

4. The question for us is whether the recent changes in Sri Lanka have altered that situation… [T]here is ample material which supported the view that the time the Chief Adjudicator reached his conclusion the process of investigation of someone who was suspected of involvement with the LTTE was likely to involve torture. That would be so if there were substantial grounds for believing that such an involvement had taken place, and there were in this case such grounds, whether or not the involvement was willing.

5. The situation has changed in recent months. There was a ceasefire in February of this year and the most recent CIPU report for April 2002 records some of the relaxations that have occurred since that ceasefire. Paragraph 3.67 notes that in April 2002 the LTTE opened a political office in a Government held area in the north of the country and that that had been inaugurated under the ceasefire agreement. There had been permission for LTTE cadres wearing cyanide capsules to move back to an LTTE controlled area and those who were clearly recognised as being LTTE activists were permitted to move around unmolested. On 13 April the LTTE signed a pact with the Sri Lankan Muslim Congress and agreed that nearly 100,000 Muslims expelled from the north by the Tamil Tigers would be allowed to return. All this indicates a change of the situation and gives hope that the situation will stabilise to such an extent that the persecution which has existed in the past and the havoc created by the civil war will cease. The likelihood of any difficulties on return has also been considered by a fact finding mission to Sri Lanka which visited that country at the end of March this year and those involved discussed the situation with among others the Director and the Senior Superintendent in the Criminal Investigations Department. The report records that if a returnee were not wanted he would not be stopped at the airport. We underline 'if a returnee were not wanted' because there is of course a finding in this case that the appellant was wanted. He went on a computer which holds the name, address and age of a wanted man. The police purely go on records, scars would not make a difference and the authorities would not make a decision on that basis."

Having in paragraph 6 concluded that the appellant, being on a wanted list, would if he were returned be stopped and questioned at the airport, Collins J continued:

"7. We note that the UNHCR has indicated that although in general it may be that asylum seekers can properly be returned and that scarring was perhaps not a significant factor, nonetheless it could not be accepted that there was even now no risk to anyone. The situation is still somewhat fluid, although there are reasons to be optimistic. The fact is that this ceasefire has only been in place for a relatively short period and the authorities are still interested so far as we are aware, and it would be surprising if they were not, in those who may have been involved in active assistance of the terrorists in the past. There are signs from reports that there is still a degree of mistrust and suggestions that the Tigers are taking some opportunity to regroup and possible even to re-arm. Whether that in fact will result in as breakdown of the ceasefire in due course we do not know. We hope that it will not but we cannot at this stage be sure about it.

8. The reality is in our judgment that it is as yet premature to accept that everyone who has claimed asylum in this country would be able to return safely. We certainly are of the view that in the present situation and having regard to the present trends it is only the exceptional cases that will not be able to return in safety. The question is whether this appellant is such an exceptional case. In our judgment he is for the reasons that we have indicated, namely that he is someone who is wanted and is someone...

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