AS TO THE ADMISSIBILITY OF
Application No. 14543/89
by Viraj MENDIS
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 March 1989, the following members being present:
MM. C.A. NØRGAARD, President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 January
1989 by Viraj MENDIS against the United Kingdom and registered on
19 January 1989 under file No. 14543/89;
- ii -
14543/88
Having regard to:
- reports provided for in Rule 40 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 January 1989 refusing the
applicant's request for an indication under Rule 36;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a citizen of Sri Lanka, of the majority
Sinhalese ethnic origin. He was born in 1956 and was in detention in
the United Kingdom awaiting removal to Sri Lanka when he lodged his
application; on 20 January 1989 he was deported to Sri Lanka. He is
represented before the Commission by Messrs. Winstanlay-Burgess,
solicitors, London.
The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant was admitted to the United Kingdom in 1973 as a
student, until October 1975. No further application was made for an
extension of his leave and the applicant remained unlawfully in the
United Kingdom. Inquiries as to his whereabouts remained unsuccessful
until May 1984 when the Greater Manchester Police traced him. At that
time he was unemployed, single and in receipt of unemployment benefit,
residing in a local authority flat. The applicant married a British
citizen on 25 July 1984. His solicitors requested the Home Office to
allow the applicant to remain on the basis of the marriage and the
applicant's claim that, although Sinhalese, he had openly opposed the
dealings of the ruling majority with the Tamil minority in Sri Lanka
and felt that he would be penalised because of this if returned to
that country. His opposition in the United Kingdom to the Sri Lankan
Government, expressed, for example, in two articles and participation
in two demonstrations, would have been reported by the Sri Lankan High
Commission staff.
The applicant and his wife were invited to attend an interview
on 29 October 1984, but only the applicant appeared. The couple had
separated and she declined to accompany him. At the interview the
applicant confirmed that he was of Sinhalese extraction and that his
parents lived untroubled with his brother and sister in Colombo. His
brother worked for Air-Lanka at Colombo airport; other relatives
lived near Colombo and he had no close relatives in the United
Kingdom. The applicant's studies had been financed by his father, but
when the applicant failed certain examinations his father could not
afford to pay for him to retake that academic year, so the applicant
had found work in a bakery. Since 1982 he had been living on public
funds. He had married for fear of deportation, although he said that
he had known his wife for a long time and would have married her
anyway. When the wife was interviewed in November 1984 she stated
that reconciliation was unlikely and that the marriage was one of
convenience to help the applicant avoid deportation.
The Secretary of State, after reviewing the circumstances of
the case, found that the applicant did not have a well-founded fear of
persecution because of his political opinions about Sri Lanka.
Accordingly the applicant was refused political asylum. The Home
Secretary also refused the applicant leave to remain on the basis of
his marriage. Notice of deportation was issued on 21 August 1985,
against which the applicant appealed to an Adjudicator.
On 14 February 1986 the Adjudicator dismissed the applicant's
appeal. He was satisfied that the applicant did not have a
well-founded fear of persecution if removed to Sri Lanka, particularly
in the light of an assurance provided by the High Commissioner for Sri
Lanka to the Minister of State on 4 June 1985 to the effect that the
applicant was not wanted in Sri Lanka for any offence, criminal or
otherwise, and that he would be free to go to Sri Lanka without any
impediment. The Adjudicator considered that the applicant's actions
in openly and publicly espousing the Tamil separatist cause was a
deliberate and cynical attempt to avoid deportation. On 16 July 1986
the Immigration Appeal Tribunal dismissed the applicant's further
appeal, concluding "that both the decisions of the Secretary of State
and the Adjudicator were reasonable, in accordance with the
immigration rules and involved no wrong exercise of discretion."
Further representations were then made by the applicant's
Member of Parliament to the Minister of State. However, he was unable
to persuade the Minister to change his mind and on 18 December 1986
the deportation order against the applicant was signed. On 20
December 1986 the applicant took refuge in a Manchester church and a
campaign to defend the applicant's stay in the United Kingdom was
organised. His case had the support of, inter alia, Amnesty
International, the World Council of Churches and the British Refugee
Council.
Judicial review of the earlier proceedings was refused by the
High Court on 27 July 1987 and by the Court of Appeal on 17 June 1988.
The House of Lords refused further leave to appeal on 21 December
1988. On 18 January 1989 the applicant was arrested with a view to
immediate deportation.
During the various court proceedings, the basis for the
applicant's asylum claim changed. In the end he claimed that his main
fear for his safety stemmed from the extreme Sinhalese terrorist and
insurrectionary force, the Janatha Vimukhei Peramuna (JVP), who might
attempt to assassinate him as a traitor to his race for being "soft
on" Tamils.
According to Professor Manor, an expert in Sri Lankan affairs,
the security and political situation in Sri Lanka has deteriorated
significantly since 1986, with around 670 political killings between 1
August 1987 and 15 October 1988. Professor Manor records that the JVP
presents a major threat to the Sri Lankan Government and to anyone
showing sympathy with the Tamil minority.
In a letter dated 18 January 1989, to the applicant's
representatives, the Home Office expressed the following views on the
case:
"At all times since the making of the deportation order
against Mr. Mendis the Home Secretary has kept closely in
touch with developments in Sri Lanka. He has seen many
press articles including those appended to your letters,
together with reports from organisations such as Amnesty
International, material put forward in support of individual
asylum applications and frequent situation reports from the
Foreign and Commonwealth Office. Moreover, he has on
several occasions since the making of the deportation order
considered representations from various organisations and
individuals on Mr. Mendis' behalf, in particular
representations from the Bishop of Manchester and Mr.
Litherland, MP. Few cases, if any, have received such
careful consideration over such a protracted period of time.
The Home Secretary takes the view that, while there is and
has been considerable civil unrest in Sri Lanka, it has at
no point been established that Mr. Mendis has a well-founded
fear of persecution there within the terms of the 1951
United Nations Convention. He has reviewed the case again
in the light of your letters, but has concluded that there
are no grounds for altering his decisions to refuse refugee
status and to make a deportation order against Mr. Mendis.
You have argued that 'the Secretary of State has seriously
misjudged the overall position in Sri Lanka, possibly as a
result of the poor advice he has received in this respect'.
The Home Secretary does not accept that this is so. His
initial decision was upheld by the applellate authorities
and reviewed by the Divisional Court and the Court of
Appeal, who concluded unanimously that there were no grounds
for quashing the decision. He is satisfied that he has full
and up to date information concerning recent developments in
Sri Lanka and has taken this information fully into account
in considering Mr. Mendis' case.
Your letter of 21 December refers to the opinions of
Professor James Manor, but the Home Secretary does not
accept his interpretation of the implications of
developments in Sri Lanka. In particular, the Home
Secretary does not accept Professor Manor's allegation in
the final enclosure to your letter that:
'the main source of terrorism on the island in
recent years has been the state, and not
insurgence from either community.'
The Home Secretary would point to the efforts of the Sri
Lankan Government to curtail the activities of both Tamil
militant groups and the JVP which, together with the calling
and conduct of the recent elections in Sri Lanka and the
ending of the state of emergency, provide firm indications
of the Government's determination to uphold the rule of law.
The Home Secretary has, of course, taken into account the
recently heightened activity of the JVP, who, in your view,
now pose the most significant threat to Mr. Mendis' safety.
He accepts that the rise of Sinhalese terrorism has added to
the dangers and uncertainties of life in Sri Lanka. But the
situation there is fluid and, for example, the period which
has seen a deterioration of security in the South has also
seen perceptible stabilisation in the North and East.
Having carefully considered your representations in this
matter, the Home Secretary does not consider that the
activity of the JVP provides a sufficient basis for a well
founded fear of persecution on the part of Mr. Mendis within
the terms of the 1951 Convention.
The other points you have raised relate to Mr. Mendis'
activity in this country before the decision to deport him
was taken, ... The question of his activities in this
country was dealt with very fully in the adjudicator's
determination.... Having heard all the evidence the
adjudicator concluded that the 'appellant's public and open
espousal of the separatist cause was nothing more than a
deliberate and cynical attempt on his part to place himself
in such a position that he could not be deported to Sri
Lanka'. Nothing in the material subsequently received has
caused the Home Secretary to regard this as an erroneous
assessment...
The Home Secretary has carefully considered, in the light of
all the information at his disposal and everything in your
letters, whether Mr. Mendis now has a well-founded fear of
persecution within the meaning of the 1951 Convention and has
concluded that there are no grounds for changing his original
decision. Accordingly, arrangements will now be made to
enforce the deportation order against Mr. Mendis who has now
been detained..."
The applicant did not take action to find an alternative
country of residence until shortly before his arrest. On 19 January
1989 the Freie Hansestadt Bremen, Germany, offered to take the
applicant within a few days once the necessary administrative
arrangements could be made. However, the Home Office were not fully
satisfied with such a proposal and refused to delay the applicant's
deportation further. He was returned to Sri Lanka on 20 January 1989.
COMPLAINTS
The applicant complains that his deportation to Sri Lanka put
him at risk of assassination by the JVP because of his known support
for the separatist demands of the Tamil minority. He thereby claims
to be a victim of a violation of Article 3 of the Convention. He
also complains of a breach of Article 13 of the Convention, there
being no right of appeal against the decision of the Home Secretary
contained in the Home Office letter of 18 January 1989. In this
respect reliance is placed on arguments put to the Commission in the
pending case of 5 Tamils against the United Kingdom (Nos. 13163/87,
13164/87, 13165/87, 13447/87 and 13448/87).
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 18 January 1989 and
registered on 19 January 1989. When lodging the application, the
applicant requested that the Commission indicate to the Government,
pursuant to Rule 36 of its Rules of Procedure, a stay in his
deportation to Sri Lanka.
On 19 January 1989 the Rapporteur, pursuant to Rule 40 para. 2
(a) of the Commission's Rules of Procedure, requested certain
information from the respondent Government, which was provided the
same day.
On 20 January 1989 the Commission declined to make the Rule 36
indication requested by the applicant.
THE LAW
1. The applicant has complained that his deportation to Sri Lanka
put him at risk of assassination by an extreme Sinhalese terrorist
organisation called the Janatha Vimukhei Peramuna (JVP). He thereby
claims that the United Kingdom Government have violated his rights
under Article 3 (Art. 3) of the Convention.
The Commission recalls its case-law that, whilst the
Convention does not guarantee a right, as such, to remain in a
particular country, a person's deportation where there are serious
reasons to believe that the individual will be subjected in the
receiving State to severe ill-treatment may give rise to an issue
under Article 3 (Art. 3) of the Convention which provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
However, it is only in exceptional circumstances that
deportation will give rise to an issue under this provision, and the
burden lies on the applicant to substantiate his fear that he will be
exposed to treatment or punishment falling under the Article (see No.
10308/83, Altun v. Federal Republic of Germany, Dec. 3.5.83, D.R. 36
pp. 209-235; No. 10078/82, M v. France, Dec. 13.12.84, D.R. 41 p. 103;
No. 10479/83, Kirkwood v. the United Kingdom, Dec. 12.3.84, D.R. 37
pp. 158-191 and No. 8581/79, Dec. 6.3.80, D.R. 29 p. 48).
It is not necessary to decide here the extents to which the
Commission, in examining a case of this kind under Article 3 (Art. 3) of the
Convention, may take into account an alleged danger arising, not from
the public authorities of the receiving State, but from autonomous
groups, because the Commission finds that the present case is anyway
manifestly ill-founded.
The Commission has examined the arguments and material
submitted by the applicant concerning his personal situation, security
in Sri Lanka and the terrorist activities of the JVP. However, it
finds no evidence to cast serious doubt on the conclusion of the
various British immigration authorities that the applicant's fear of
persecution is not well-founded. In particular, the Commission notes
that it cannot be said that law and order have completely broken down
in Sri Lanka, leaving civilians without any protection from terrorist
attack; the applicant has been offered a haven in Bremen, Germany.
In these circumstances the Commission concludes that the applicant's
complaint under Article 3 (Art. 3) of the Convention is manifestly ill-founded,
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained that he had no remedy under
United Kingdom law for the Home Secretary's final refusal of asylum on
18 January 1989. He has invoked Article 13 (Art. 13) of the Convention which
provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
However, the right under Article 13 (Art. 13) only extends to
Convention claims which are "arguable"; it does not require a remedy in
domestic law for any supposed grievance under the Convention, no matter how
unmeritorious (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988,
Series A. No. 131, p. 23 para. 52). The Commission finds that the applicant's
claim under Article 3 (Art. 3) of the Convention is not "arguable", as is
reflected in the above decision to reject that aspect of the case as manifestly
ill-founded, de plano. Accordingly the present case discloses no issue under
Article 13 (Art. 13) of the Convention and the applicant's complaint concerning
this provision is also manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)