THE CHAHAL FAMILY v. THE UNITED KINGDOM



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 22414/93

                       The Chahal Family

                            against

                      the United Kingdom

                   REPORT OF THE COMMISSION

                   (adopted on 27 June 1995)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-4). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 5-14) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 15-19). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 20-78) . . . . . . . . . . . . . . . . . . . . .4

     A.   The particular circumstances of the case

          (paras. 20-47). . . . . . . . . . . . . . . . . . .4

     B.   The relevant domestic law

          (paras. 48-61). . . . . . . . . . . . . . . . . . .9

     C.   The Indian background to the present case,

          as described by the Government

          (paras. 62-65). . . . . . . . . . . . . . . . . . 11

     D.   The effects of Sikh extremism outside India

          and particularly in the United Kingdom,

          as described by the Government

          (paras. 66-69). . . . . . . . . . . . . . . . . . 12

     E.   The Government's case of the first applicant's

          involvement in Sikh extremism and terrorism

          (paras. 70-71). . . . . . . . . . . . . . . . . . 13

     F.   The first applicant's response to the

          Government's allegations

          (paras. 72-78). . . . . . . . . . . . . . . . . . 14

III. OPINION OF THE COMMISSION

     (paras. 79-158). . . . . . . . . . . . . . . . . . . . 17

     A.   Complaints declared admissible

          (paras. 79-80). . . . . . . . . . . . . . . . . . 17

     B.   Points at issue

          (para. 81). . . . . . . . . . . . . . . . . . . . 17

                       TABLE OF CONTENTS

                                                          Page

     C.   As regards Article 3 of the Convention

          (paras. 82-115) . . . . . . . . . . . . . . . . . 17

          Conclusion

          (para. 115) . . . . . . . . . . . . . . . . . . . 25

     D.   As regards Article 5 para. 1 of the Convention

          (paras. 116-123). . . . . . . . . . . . . . . . . 25

          Conclusion

          (para. 123) . . . . . . . . . . . . . . . . . . . 27

     E.   As regards Article 5 para. 4 of the Convention

          (paras. 124-129). . . . . . . . . . . . . . . . . 27

          Conclusion

          (para. 129) . . . . . . . . . . . . . . . . . . . 28

     F.   As regards Article 8 of the Convention

          (paras. 130-140). . . . . . . . . . . . . . . . . 28

          Conclusion

          (para. 140) . . . . . . . . . . . . . . . . . . . 29

     G.   As regards Article 13 of the Convention

          (paras. 141-153). . . . . . . . . . . . . . . . . 30

          Conclusion

          (para. 153) . . . . . . . . . . . . . . . . . . . 31

     H.   Recapitulation

          (paras. 154-158). . . . . . . . . . . . . . . . . 31

PARTIALLY DISSENTING OPINION OF MR. TRECHSEL. . . . . . . . 33

APPENDIX I   : HISTORY OF THE PROCEEDINGS . . . . . . . . . 34

APPENDIX II  : DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 35

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A.   The application

2.   The first applicant, Karamjit Chahal, is an Indian citizen, born

in 1948, and presently detained for deportation purposes in H.M. Prison

Bedford.  The second applicant, Darshan Kaur Chahal, his wife, is an

Indian citizen, who was born in 1956.  She resides in Luton with the

two children of the family, a daughter called Kiranpreet Kaur Chahal,

the third applicant, born in 1977, and a son called Bikaramjit Singh

Chahal, the fourth applicant, born in 1978.  By virtue of their birth

in the United Kingdom, the two children have British nationality.  The

applicants were represented before the Commission by Mr. D. Burgess,

Solicitor, Messrs. Winstanley-Burgess, Solicitors, London.

3.   The application is directed against the United Kingdom.  The

respondent Government were represented by their Agent, Mr. I. Christie.

4.   The case concerns the proposed deportation of the first

applicant, an Indian Sikh militant, from the United Kingdom on national

security grounds.  He has been detained for nearly five years pending

the enforcement of the deportation order and the outcome of the

domestic and Strasbourg proceedings.  The first applicant invokes

Article 3, Article 5 paras. 1 and 4, Article 8 and Article 13 of the

Convention.  (A complaint he originally made under Article 6 para. 1

of the Convention concerning the fairness of certain remedies was

declared inadmissible by the Commission on 1 September 1994; see

Appendix II to this Report.) The other applicants invoke Articles 8 and

13 of the Convention.

B.   The proceedings

5.   The application was introduced on 27 July 1993 and registered on

4 August 1993.

6.   On 30 July 1993 the Commission was requested to indicate a stay

of the first applicant's deportation under Rule 36 of the Commission's

Rules of Procedure. This request was notified to the Government of the

United Kingdom.

7.   On 2 August 1993 the Government informed the Commission that the

Home Office had no immediate plans to deport the first applicant whilst

proceedings were still pending.  They undertook to provide the

Commission with at least two weeks' notice of any intended deportation

of the applicant.

8.   On 8 September 1993 the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to communicate the application

to the respondent Government and to invite the parties to submit their

written observations on admissibility and merits.

9.   The Government's observations were submitted, after an extension

of the time-limit set for this purpose, on 23 December 1993.  The

applicants' observations were submitted, after two extensions of the

time-limit, on 7 April 1994.

10.  On 16 May 1994 the Commission decided to invite the parties to

make oral submissions at a hearing, which was fixed for

1 September 1994.  The President of the Commission granted the

applicants legal aid on 22 July 1994.  Prior to the hearing the parties

submitted additional documents: the Government submitted various press

cuttings on 17 August 1994, and on 23 August 1994 the applicants

submitted a decision of an Immigration Appeal Tribunal.

11.  At the hearing on 1 September 1994 the Government were

represented by Mr. I. Christie, Agent, Foreign and Commonwealth Office,

Mr. M. Beloff, QC, Counsel, Mr. R. Jay, Counsel, Miss T. Callman,

Counsel, and MM. D. Seymour, D. Cooke, and A. Cunningham, Advisers.

The applicants were represented by Mr. N. Blake, QC, Counsel,

Mr. D. Burgess, Solicitor, Messrs. Winstanley-Burgess.  The second,

third and fourth applicants also attended the hearing.

12.  On 1 September 1994 the Commission declared inadmissible the

first applicant's complaint under Article 6 of the Convention about the

fairness of remedies.  It declared the remainder of the application

admissible.

13.  The text of the Commission's decision on admissibility was sent

to the parties on 12 September 1994 and they were invited to submit

such further information or observations on the merits as they wished.

The applicants submitted further evidence and additional observations

on 28 October 1994. After two extensions of the time-limit, the

Government also submitted further evidence and additional observations

on 23 December 1994. In view of the new information contained in the

latter materials, the applicants submitted comments, after an extension

of the time-limit, on 31 March 1995.

14.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement.  In the light of the parties' reaction, the

Commission now finds that there is no basis on which such a settlement

can be effected.

C.   The present Report

15.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

     MM.  C.A. NØRGAARD, President

          C.L. ROZAKIS

          E. BUSUTTIL

          G. JÖRUNDSSON

          S. TRECHSEL

          A.S. GÖZÜBÜYÜK

          H.G. SCHERMERS

     MM.  F. MARTINEZ

     Mrs. J. LIDDY

     MM.  J.-C. GEUS

          M.P. PELLONPÄÄ

          B. MARXER

          M.A. NOWICKI

          I. CABRAL BARRETO

          B. CONFORTI

          N. BRATZA

          D. SVÁBY

16.  The text of this Report was adopted on 27 June 1995 by the

Commission and is now transmitted to the Committee of Ministers of the

Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

17.  The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the State concerned of its obligations under

          the Convention.

18.  A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

19.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

20.  The first applicant entered the United Kingdom in 1971 without

seeking leave to do so from British immigration authorities.  In 1974

he applied to the Home Office to regularise his stay and on 10 December

1974 was granted indefinite leave to remain under the terms of an

amnesty for illegal entrants who arrived before 1 January 1973.

21.  The second applicant settled in the United Kingdom in 1975 and

the third and fourth applicants have been resident there since

their birth.

22.  From 1 January to 27 May 1984 the first applicant was in India

and whilst there met prominent Sikh religious and political leaders.

Since 1984 the applicant has propagated a belief in a purer form of

Sikh religious practices and supported the movement for a Sikh

independent homeland (Khalistan).  He has been a prominent religious

figure in the affairs of British Sikhs since 1984, a member of the

governing committees of a number of Sikh temples (gurdwaras) and has

toured the United Kingdom with other militants, baptising and

counselling Sikhs.  He has supported the International Sikh Youth

Federation (ISYF), which in turn supports the All Indian Sikh Student

Federation.

23.  The first applicant has been arrested by the British police in

connection with his activities and associates in the United Kingdom.

He has twice been charged with criminal offences of a violent order

relating to disputes in the affairs of two gurdwaras.  He has been

acquitted by a jury in one case.  The other case resulted in his

conviction in May 1987, but it was quashed by the Court of Appeal on

27 July 1992 after the applicant had served the nine month prison

sentence which had been imposed at first instance.  He has never been

charged with offences relating to conspiracy to injure or kill, or with

similar offences, whether in the United Kingdom or India, despite the

provisions of British criminal law that enable agreements to commit

violence in India to be prosecuted in the United Kingdom if the

agreement is intended in part to be executed in the United Kingdom.

24.  A request by the first applicant for British nationality was

refused on 4 April 1989.

25.  On 14 August 1990 the Home Secretary decided that the first

applicant should be deported from the United Kingdom because his

continued presence there was deemed unconducive to the public good for

reasons of national security and other reasons of a political nature,

namely the international fight against terrorism.  A notice was issued

to this effect. On 16 August 1990 the first applicant was detained for

deportation purposes and has remained in custody since, pursuant to

para. 2 (2) of Schedule III of the Immigration Act 1971.

26.  The first applicant applied for political asylum, claiming to be

a victim of threatened torture and persecution in India on the

following basis:

     a)   his personal experiences in India between January and

     May 1984, during which time it is accepted that he was detained

     for over three weeks and tortured by a number of Indian police

     officers in two different police stations;

     b)   the consistent evidence of a real risk of torture, murder,

     and detention at the hands of the Indian authorities,

     particularly the police, faced by those who either are, or are

     perceived to be, Sikh militants and adherents to the cause of a

     Sikh state in India.  The evidence extends throughout the period

     1984 to 1992 and is continuing. It is most comprehensively

     expressed in the reports of Amnesty International, their letters

     to the Secretary of State in the present case, the evidence of

     other experts, and the evidence relied on by the Home Office,

     namely a report prepared by the British Foreign Office;

     c)   the evidence of a certain Kharnail Singh Khaira, who

     visited India in 1989, was detained and tortured there after

     visiting the first applicant's relatives, and was questioned

     about the applicant by his torturers;

     d)   evidence relating to the fate of other relatives or

     acquaintances of the first applicant, eg. the deaths at the hands

     of the police of his cousin's son-in-law (1983), his cousin's son

     (October 1989), a relative by marriage (February 1990), and his

     second cousin (March 1990), and the arrest and torture of his

     sister, brother-in-law and two nephews (October 1989), by the

     police;

     e)   the arrest and detention, with or without charge, of the

     family and acquaintances of the first applicant on suspicion of

     supporting Sikh separatist militants, many of whom, including his

     parents, having been tortured and questioned about the first

     applicant;

     f)   the accounts given by the first applicant's village headman

     and family in India as to the interest in the applicant shown by

     the security forces;

     g)   the interest in the first applicant's proposed expulsion

     from the United Kingdom on national security grounds and his Sikh

     militancy expressed by the national press in India, including

     misrepresentations as to the extent of and reasons for the police

     interest in the applicant in India;

     h)   the circulation by the Indian national press and some pro-

     government agency in the United Kingdom (which the applicants

     believe to be the Indian High Commission) of inaccurate

     speculation purporting to come from an identified British senior

     police officer that the first applicant had been found in

     possession of explosives and had targeted prominent Sikhs in the

     United Kingdom;

     i)   a warning on behalf of the Canadian police, given to the

     first applicant before the deportation proceedings began, that

     he was in danger in India;

     j)   the fact that the first applicant's former associate,

     Jasbir Singh Rode, was detained without trial or charge for four

     years upon his expulsion to India;

     k)   evidence relating to the general events in the Punjab, the

     scale of the problems, the inadequacy of the response of the

     authorities or their inability to respond;

     l)   the decisions of judicial authorities in the United Kingdom

     and elsewhere considering the application of the relevant legal

     criteria of risk of persecution to credible accounts of fears of

     persecution given by Sikh militants with respect to their

     treatment in India.

27.  On 27 March 1991 the Home Secretary refused the first applicant's

request for asylum. Given the national security elements in the case,

the first applicant had no right of appeal to an independent tribunal

against the Home Secretary's notice of intention to deport him.

However, the matter was considered by an advisory panel on

10 July 1991.

28.  The Home Secretary expressed the following views about the first

applicant throughout the domestic proceedings:

     a)   the first applicant has a public history of violent

          involvement in Sikh terrorism, including involvement in the

          financing of terrorism in India by the supply of money and

          equipment to terrorists in the Punjab since 1985, which

          equipment has been used for actual terrorist operations;

     b)   he has been involved in the planning and directing of

          terrorist attacks in India, the United Kingdom and

          elsewhere; and

     c)   in his leading role in a faction of the ISYF, he was

          involved in that faction's programme of intimidation

          directed against members of other groups within the United

          Kingdom Sikh community.

29.  The applicant was not informed of the basis for these views which

were put to the advisory panel. He was not allowed to be represented

by a lawyer and he was not informed of the advice which the panel gave

to the Home Secretary. The latter subsequently signed a deportation

order against the first applicant on 25 July 1991.

30.  The applicant sought judicial review of the Home Secretary's

decision. Leave was granted by the High Court on 2 September 1991 and

the asylum refusal quashed on 2 December 1991 because the reasoning

behind it was considered inadequate. Mr. Justice Popplewell expressed

"enormous anxiety" about the case.

31.  After further consideration of the first applicant's situation,

the Home Secretary adhered to his previous decision (renewed decision

1 June 1992).

32.  Part of the first applicant's case was based on reports by

Amnesty International and other material showing that a great number

of Sikhs have been persecuted in India. Amnesty International,

convinced that the first applicant, if sent to India against his will,

would be at risk of torture, "disappearance" or extrajudicial

execution, made representations about the present case to the Home

Secretary. The latter examined Amnesty's documentation, but stated,

     "... that the emergency powers in force in the Punjab, including

     the Terrorist and Disruptive Activities Act 1985 (TADA), are

     lawful powers, properly enacted by the Indian Parliament, which

     have been instituted in response to the very serious threat to

     the life and safety of the community posed by the activities of

     Sikh terrorists in the Punjab.  He (noted) that the judiciary in

     India is independent of the Government and that there is an

     effective system of appeals in criminal matters ranging from

     District Courts to the Supreme Court."

33.  Concerning human rights violations by the Indian security forces

in the Punjab, the Home Secretary commented as follows:

     "... he considers that these actions arise from failures of

     discipline and supervision and not from any concerted policy on

     the part of the Indian authorities.  Moreover, he considers that

     the breakdown of law and order of which these violations are a

     part results directly from the activities of Sikh terrorists and

     in particular their strategy of intimidation and provocation of

     members of the security forces.  He does not accept that they are

     evidence of persecution within the terms of the UN Refugee

     Convention against Sikhs generally in the Punjab, nor against

     supporters of an independent Sikh homeland, nor against alleged

     Sikh terrorists ... [he] notes that these violations have not

     been condoned by the Indian or state Governments ...".

34.  The Home Secretary also examined what might happen to the first

applicant on his return to India. He accepted that the first applicant

might be arrested and charged with terrorist offences in India, under

the TADA or other provisions of Indian criminal law.  However, were he

to be charged, the Secretary of State believed that he would be subject

to prosecution for alleged criminal activities, not for his political

beliefs or expressions, and that he would receive full protection by

the Indian Government from mistreatment while held in custody.

35.  If the first applicant were not arrested by the Indian

authorities, the Home Secretary accepted that he or indeed any other

person visiting or living in the Punjab at that time faced some risk

of violence, both from being caught up in a terrorist outrage or from

the activities of members of the security forces acting outside the

law. However, the Home Secretary did not regard this as persecution

within the meaning of the 1951 United Nations Convention on the Status

of Refugees.  He noted that Sikhs live safely in most parts of India

outside the Punjab and that the first applicant was not obliged to

return to the Punjab itself. He would be returned to any international

airport of his choice within India.

36.  In a letter of 18 June 1992, the applicants' solicitors stated

that the first applicant did not regard a location in India outside the

Punjab as an area in which he would not face a real risk of persecution

for a Refugee Convention reason.  Furthermore he did not regard any

point of re-entry to India as safe for him.

37.  In his reply by letter of 2 July 1992, the Home Secretary

reiterated that the first applicant would be deported to any

international airport of his choice within India and informed the

solicitors that he had

     "... sought and received assurances from the Indian Government

     a copy of which is attached and which further satisfy him as to

     this matter.  The Secretary of State therefore remains of the

     view that Mr. Chahal would be safe from ill-treatment if taken

     into custody by the Indian authorities wherever he might be held

     in custody."

38.  The assurances mentioned are contained in a letter dated

29 June 1992 from the Indian High Commission to the Under-Secretary of

State at the Foreign Office:

     "... if Mr. Chahal were to be deported to India, he would enjoy

     the same legal protection as any other Indian citizen, and ...

     he would have no reason to expect to suffer ill-treatment of any

     kind at the hands of the Indian authorities."

39.  Subsequent to this correspondence, further material (in

particular from Amnesty International) was made available to the Home

Secretary.  In response he stated that he did not substantially dispute

Amnesty's reports insofar as they related in a limited way to the

general situation in the Punjab, but he commented that he did not

accept that the material used in the compilation of these reports was

necessarily independent or objective.  Nor did he draw the same

inferences as the applicants' solicitors from those reports.

40.  The quashing of the first applicant's conviction by the Court of

Appeal on 27 July 1992 did not significantly change the Home

Secretary's evaluation of the substantial security risk posed by the

first applicant. Because of this assessment, he also considered that

the first applicant could not benefit from the protection of

Articles 32(1) and 33 of the United Nations Refugee Convention even if

he had had a satisfactory claim to refugee status.

41.  The first applicant applied for judicial review to challenge the

Home Secretary's second refusal of asylum and the maintenance of the

deportation decision. He also applied for bail, which was refused on

23 July 1992.

42.  On 12 February 1993 the judicial review application and a renewed

bail request were refused, the High Court holding that the Home

Secretary's decisions had not been irrational. A renewed application

for judicial review to the Court of Appeal was heard on 28 July 1993

and dismissed on 22 October 1993.

43.  The Court of Appeal noted that, whilst it had before it massive

evidence as to whether the life or freedom of the first applicant would

be threatened if he were returned to India, it did not have the

evidence on which the Home Secretary considered the applicant to be a

risk to national security. So the Court could not balance the threat

on the one hand against the risk on the other. Its function was to

consider the first applicant's evidence regarding the threat to his

life and to examine whether the Home Secretary's decision on grounds

of national security was irrational, perverse or based on a

misdirection. It was also required to examine whether there was

sufficient evidence that the Home Secretary balanced the gravity of the

national security risk against all other circumstances, including the

likely risk of persecution if the person were deported. The Court

pointed out that the scrutiny of the claim that a person should be

deported in the interests of national security may in practice be

defective or incomplete if all the relevant facts are not before the

it. Furthermore, even when the relevant facts are before the Court, it

is not empowered to carry out its own assessment of the respective

risks.

44.  As to the particular facts of the case, one member of the Court

of Appeal considered that much of the evidence about the

first applicant's past was second-hand, or even more remote, and could

in part be said to be evidence of impression rather than fact. Another

judge considered that there was a clear case to consider that the first

applicant had a well-founded fear of being persecuted, within the

meaning of Article 1 of the 1951 Convention on the Status of Refugees,

if returned to India. It was deemed irrelevant that some of the victims

of police violence in India were guilty of terrorist acts. The

possibility that the first applicant would suffer unauthorised ill-

treatment in the hands of Indian security forces was left open.

45.  Nevertheless, the Court of Appeal was impressed by the assurance

given by the Indian Government that the first applicant's rights would

be protected on return to India. The Court was informed that such

assurances are seldom sought or given.

46.  The Court thus held that it had power to examine the grounds on

which a deportation order was made, even where the interests of

national security are relied upon, although in practice its scrutiny

is limited. As regards the facts of the present case, the Court

concluded that the grounds of national security could not be challenged

and there was sufficient evidence that the Home Secretary had carried

out the necessary balancing exercise.

47.  The first applicant's petition to the House of Lords for leave

to appeal was rejected on 2 March 1994.

B.   The relevant domestic law

48.  By section 3(5)(b) of the Immigration Act 1973 ("the Act"), the

Home Secretary has the power to deport persons who are not British

citizens, including those such as the first applicant who have

indefinite leave to remain in the United Kingdom, on the ground that

their deportation is conducive to the public good.  The first applicant

was granted indefinite leave to remain in the United Kingdom on

10 November 1974, but he had arrived there clandestinely in 1971 and

is not able to benefit from the immunity accorded to Commonwealth

citizens ordinarily resident in the United Kingdom on 1 January 1973

as bestowed by section 7 of the Act.

49.  By section 15(1) of the Act, there is a right of appeal to an

independent tribunal against a decision to deport, but by

section 15(3):

     "A person shall not be entitled to appeal against a decision to

     make a Deportation Order against him if the ground of the

     decision was that his deportation is conducive to the public good

     as being in the interests of national security or of the

     relations between the United Kingdom and any other country or for

     other reasons of a political nature."

50.  This exception was maintained in the Asylum and Immigration

Appeals Act 1993, which came into force in July 1993.  It provides a

right of appeal to an independent adjudicator in all but national

security cases where expulsion would be contrary to the United

Kingdom's obligations under the 1951 Convention on the Status of

Refugees.

51.  The first applicant's case was considered by a non-statutory

advisory panel (presided over by a Lord Justice of Appeal, now a Law

Lord) instituted in 1971 for national security cases of this type.  The

existence of this procedure is vouchsafed by paragraph 157 of the

Statement of Changes in Immigration Rules (House of Commons Paper 251).

52.  By paragraphs 161 and 173 of the Home Secretary's current Rules

governing immigration control and practice in the United Kingdom (HC

251), deportation orders may not be made in breach of the United

Kingdom's obligations under the 1951 Convention and Protocol Relating

to the Status of Refugees.

53.  The relevant Articles of the Refugee Convention are Articles 32

and 33. Article 33 provides:

     "1. No contracting state shall expel or return 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.

     2. The benefit of the present provision may not, however, be

     claimed by a refugee whom there are reasonable grounds for

     regarding as a danger to the security of the country in which he

     is, or who, having been convicted by a final judgment of a

     particularly serious crime, constitutes a danger to the community

     of that country."

54.  The first applicant was detained following the service on him of

the Home Secretary's notice of intention to deport. The power to

detain, pending the making of an order, derives from paragraph 2(2) of

Schedule III to the Act, which reads as follows:

     "Where notice has been given to a person in accordance with

     Regulations under Section 18 of this Act of a decision to make

     a Deportation Order against him, and he is neither detained in

     pursuance of the sentence or order of a Court nor for the time

     being released on bail by a Court having power so to release him,

     he may be detained under the authority of the Secretary of State

     pending the making of the Deportation Order."

55.  The power to detain after the making of an order derives from

paragraph 2(3), which provides:

     "Where a Deportation Order is in force against any person, he may

     be detained under the authority of the Secretary of State pending

     his removal or departure from the United Kingdom (and if already

     detained by virtue of sub-paragraph (1) or (2) above when the

     order is made, shall continue to be detained unless the Secretary

     of State directs otherwise)."

56.  The Home Secretary has a practice of not removing asylum seekers

from the United Kingdom pending the resolution of any judicial review

proceedings they might bring (Muboyayi case [1992] IQB 244 at 259C).

57.  The High Court has power to review the Home Secretary's decision

to maintain an asylum seeker in detention (R v. Governor of Durham

Prison, Ex-Parte Hardial Singh [1984] IWLR 704), but it is incumbent

on an applicant to demonstrate that the Home Secretary was acting for

a collateral purpose or irrationally.

58.  The decisions of the Home Secretary are liable to challenge by

way of judicial review and may be quashed by reference to the ordinary

principles of English public law. This remedy was explained before the

European Court of Human Rights in the case of Vilvarajah and Others

(Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,

Series A no. 215, pp. 29-31, paras. 89-93, and pp. 38-40, paras. 117-

127).

59.  The High Court's supervisory function in relation to the

lawfulness of an asylum decision is not displaced merely because

national security issues are also engaged. However, judicial review in

this field is limited because "the decision on whether the requirements

of national security outweigh the duty of fairness in a particular case

is a matter for the Government to decide, not for the courts; the

Government alone has access to the necessary information and in any

event the judicial process is unsuitable for reaching decisions on

national security" (Council of Civil Service Unions v. Minister for the

Civil Service [1985] AC. 374, Lord Fraser at 402). Nevertheless, the

fairness of the procedure by which the Government have reached their

decision is justiciable and it is for the courts to determine whether

the Government have in fact balanced any conflicting interests between

national security and the individual.

60.  Any person in detention is entitled to seek bail or challenge the

lawfulness of his detention by way of a writ of habeas corpus.

61.  Reciprocal extradition arrangements between India and the United

Kingdom are possible under the Extradition Act 1989, India being a

Commonwealth country. Previous restrictions preventing the return of

political offenders were modified by an extradition treaty concluded

with India in 1993, and in which were integrated certain notions

contained in the Suppression of Terrorism Act 1978. The treaty thus

allows extradition for certain serious offences hitherto deemed to have

a political character, provided that the extradition request discloses

no ulterior elements of a racial, religious, national or political

nature. The matters with which the first applicant is reproached, such

as conspiracy to supply funds, would not fall within any of the

offences defined in the 1978 Act.

C.   The Indian background to the present case, as described by the

     Government

62.  In their observations of 23 December 1994, the Government portray

the following background to the present case. Since the partition of

India in 1947, many Sikhs have been engaged in a political campaign for

an independent homeland (Khalistan), based on the Indian province of

Punjab. In the late 1970s an increasingly violent group emerged under

the leadership of Sant Jarnail Singh Bhindranwale, which was prepared

to challenge both the central Indian authorities and moderate Sikhs.

Following the killing in 1983 of a senior police officer in the Golden

Temple in Amritsar, which Bhindranwale and his followers were using as

a base, the situation in the Punjab deteriorated rapidly. On 6 June

1984, the Indian army stormed the Golden Temple ("Operation Blue

Star"). A thousand Sikhs were killed, including Bhindranwale. This

operation caused domestic and international outrage. Four months later,

the Indian Prime Minister, Indira Gandhi, was assassinated in revenge

by two Sikh members of her bodyguard. The Hindu backlash after her

murder resulted in anti-Sikh riots in Delhi in which over 2000 Sikhs

were killed.

63.  Since 1984, the terrorist campaign for an independent Khalistan

has claimed over 20,000 lives. Sikh unrest in India peaked in 1992,

when apparently around 4000 lives were lost in terrorist related

incidents mainly in the Punjab. Since then it has considerably

declined; in 1994, only 51 such deaths had been reported by autumn of

that year. There are signs that normal life is being restored, with the

reassertion of the electoral and judicial processes, after years of

acquiescence in the face of police intimidation and militant activity.

64.  Standards still need to be improved, and there is national and

local commitment to that. For example, the Chief Minister of the Punjab

has agreed to give favourable consideration to setting up a state human

rights commission. Whilst abuse of detainees (irrespective of religion

or political opinion) by law enforcement authorities has been a

widespread problem throughout India, the Indian Government's attitude

has now changed, with international criticism of its human rights

record being taken seriously. A National Human Rights Commission has

been established to monitor developments. It visited the Punjab in 1994

and reported that terrorism had been contained and that normal life was

being resumed, thus paving the way to normalising the role and function

of the police and re-establishing District Magistrate authority over

them, hitherto lacking.

65.  The Terrorist and Disruptive Activities (Prevention) Act (TADA),

first introduced in 1985 to deal with the exceptional situation in the

Punjab (but enforced throughout the country), has not helped to

strengthen the accountability of the security agencies. However, the

Central Government are showing some signs of recognising the need to

prevent abuses of the TADA, and its operation is now under high level

Government review.

D.   The effects of Sikh extremism outside India and particularly in

     the United Kingdom, as described by the Government

66.  According to the information of the respondent Government as of

23 December 1994, the few remaining extremist Sikh leaders have taken

refuge in a neighbouring country from where they direct operations in

India. Although most Sikh terrorist attacks have taken place in India,

there have been attacks elsewhere in Canada, Rumania and

the United Kingdom.

67.  In the 1980s Sikh terrorist groups organised themselves into so-

called Panthic Committees, amongst which there was considerable

rivalry. This rivalry spilled over into the United Kingdom.

68.  In August 1984 Jasvir Singh Rode, the nephew and spiritual

successor of Bhindranwale who had been killed during "Operation Blue

Star", arrived in the United Kingdom to establish branches of the

International Sikh Youth Federation (ISYF) which would support the

terrorist organisations operating in the Punjab. During his visits to

gurdwaras throughout the United Kingdom, Rode made speeches urging

Sikhs to return to the Punjab to fight the Indian army. At the Luton

gurdwara he stated that he would be keeping £1000 of donations to buy

firearms for use in the Punjab. He was expelled in December 1984

because of such public advocacy. Meanwhile Harpal Sing Ghuman,

described by the Government as the leader of the military element of

Sikh extremism, had also arrived in the United Kingdom, whilst keeping

a lower profile.

69. The Government state that in 1988 the ISYF in the United Kingdom

began to split into two distinct factions, reflecting the formation of

the Panthic Committees in the Punjab. The southern branch sought to

take over the organisation and to redirect misappropriated funds to

another Panthic Committee. Having failed to bring about a change of

leadership by constitutional means, violence and litigation ensued,

involving in particular the Havelock Road Gurdwara in Southall, London,

and plots were formulated to assassinate leading characters in the

conflict which, according to the Government, included the applicant.

The conflict ended with an injunction banning certain southern ISYF

people from the Havelock Road Gurdwara. The injunction was enforced by

the London Metropolitan Police.

E.   The Government's case of the first applicant's involvement in

     Sikh extremism and terrorism

70.  In their observations of 23 December 1994, the Government, in

addition to what was publicly relied on in the domestic proceedings

(para. 28 above) make, inter alia, the following allegations:

     a)   When the first applicant was in the Punjab in January 1984,

          he had regular contacts with the militant, Bhindranwale, at

          the Golden Temple.

     b)   The leader of the military element of Sikh extremism,

          Ghuman, stayed at the applicant's home in 1984 when they

          toured the United Kingdom together in the wake of Rode,

          recruiting ISYF activists.

     c)   As a result of these associations, the first applicant

          emerged as the dominant figure in the United Kingdom ISYF

          and had considerable contacts with the Sikh terrorist

          leadership in India and Pakistan.

     d)   He was detained under the Prevention of Terrorism

          (Temporary Provisions) Act 1984 (the PTA) in October 1985

          on suspicion of involvement in a conspiracy to assassinate

          Rajiv Gandhi during an official visit to the United

          Kingdom, but he was released for lack of evidence.

     e)   The first applicant was believed to be involved in an ISYF

          conspiracy to murder moderate Sikhs in the United Kingdom

          in 1985/1986. He was arrested under the PTA and later

          released without charge.

     f)   In April 1986 he threatened to use his ceremonial sword

          against a police officer if he were visited at home.

     g)   Reliance is again placed on the first applicant's

          conviction in May 1987, albeit subsequently quashed on

          appeal, concerning disturbances at the Belvedere Gurdwara

          in Kent.

     h)   In 1988 the first applicant was deemed to be the de facto

          leader of a hard line of southern ISYF members who

          supported the Second Panthic Committee. He played a

          significant leading role in organising the intimidation of

          rival groups by the use of force.

     i)   In July 1990 close associates of the first applicant were

          arrested, charged and convicted of conspiracy to cause

          explosions in the United Kingdom. He attended one of the

          accused's remand hearing and other close associates of his

          (also called Chahal) stood surety for that person.

     j)   The second applicant has participated in the intimidation

          of her husband's opponents and their families, including an

          attempted assault on someone with a ceremonial sword.

     k)   In 1992 threats were made against the families of British

          officials in India in connection with the first applicant's

          deportation proceedings.

     l)   The first applicant has misappropriated and controlled

          gurdwara funds using threats of violence.

     m)   Under the first applicant's leadership, the southern

          faction of the ISYF was a secure and effective group. Since

          his detention, this faction has virtually ceased to exist

          and moderate control of the Havelock Road Gurdwara has been

          restored. The loss of influence and  control over funds has

          led to a loss of standing within the Second Panthic

          Committee. Sikh violence has also diminished in the United

          Kingdom.

71.  The Government emphasise that this does not represent the full

national security case against the first applicant. The full case

cannot be disclosed because intelligence sources require protection.

None of these sources came from the Indian Government. For the same

reason, it has not proved possible to prosecute the first applicant

further in the United Kingdom.

F.   The first applicant's response to the Government's allegations

72.  The first applicant categorically denies all the Government's

allegations and insinuations of guilt by association. He submits, inter

alia, the following:

     a)   The first applicant only once met Bhindranwale personally

          during his stay in the Punjab in 1984, and he was then

          accompanied by his family.

     b)   Ghuman is not a leader of the military element of Sikh

          extremism, but an intellectual deemed friendly to the

          Indian Government.

     c)   Rode did not say that he would keep donations for terrorist

          purposes. Money was collected to help the widows and

          orphans of the Golden Temple massacre.

     d)   The first applicant toured the United Kingdom with Rode,

          and later Ghuman, teaching on spiritual matters.

     e)   There are no terrorist implications behind the first

          applicant's contacts with Bhindranwale, Ghuman and Rode. He

          has had no contact with Sikh extremists. The Government

          have been misled.

     f)   There has never been an inner core of ISYF activists and

          the first applicant has not been a dominant figure in that

          organisation, although he has been a leading spiritual

          member of the Sikh community.

     g)   The Government's understanding of Sikh events in the United

          Kingdom is incorrect. The split in the ISYF came after Rode

          abandoned his support for an independent Khalistan.

     h)   The ISYF has been recognised by the Government as an

          important and constructive organisation for the United

          Kingdom Sikh community.

     i)   The southern faction of the ISYF was not the originator of

          the disturbances at the Havelock Road Gurdwara. The ISYF

          did not seek funds from gurdwaras. There has been neither

          fund raising for arms or equipment, nor misappropriation of

          funds. Such matters could easily have been the subject of

          criminal investigation and prosecution, if need be. An

          examination of the Havelock Road Gurdwara's finances

          reveals that its funds were largely committed to

          maintenance costs.

     j)   Whilst it is true that the first applicant has occasionally

          been arrested and detained, as part of the police focus on

          migrant communities, he has been found innocent every time.

          The quashing of his conviction by the Court of Appeal in

          July 1992 was not a mere procedural matter, but a

          condemnation of the kind of prejudice upon which the

          Government's present allegations are based.

     k)   He denies involvement in any conspiracy to assassinate

          Rajiv Gandhi or any moderate Sikhs in the United Kingdom.

     l)   Neither he nor his wife have used, or threatened to use, a

          ceremonial sword against anyone. Neither of them have

          intimidated members of the Sikh community or their

          families. There has been no police questioning of the

          applicants concerning such allegations.

     m)   The first applicant had no association, other than minor

          social contact, with the people who were convicted of

          conspiracy to cause explosions or those who helped them

          obtain bail. The fact that the latter were called Chahal

          merely reflects the commonplace nature of the name.

     n)   The first applicant refutes the "Godfather" image

          propounded by the Government and denies any intimidation of

          British families in India on his behalf.

73.  The applicants reject the Government's description of the

background events in India and their effects elsewhere (paras. 62-69

above) as being simplistic and laden with value judgments in using such

terms as "terrorist", "Sikh extremists", "hard line", "Sikh moderates"

and "terrorist related incidents". It should not be forgotten that many

of the reported deaths were perpetrated by the police, and included

people killed in false encounters staged by the security forces. A

major component of the violence in India may thus be attributed to

State terrorism.

74.  Reliance for this claim is placed, inter alia, on the report of

the National Human Rights Commission concerning its Punjab visit in

1994, in which it recorded complaints against the police of arbitrary

arrests, disappearances, custodial deaths and fake encounters resulting

in killings. The view was also expressed that District Magistrates were

not at present in a position to inquire into complaints of human rights

violations by the police and that there was still a prevailing feeling

of the police being above the law and answerable to none. The report

further recorded that detention under the Terrorist and Disruptive

Activities (Prevention) Act 1985 was severely criticised by the public,

allegations of arbitrariness being made.

75.  The applicants consider that the United Kingdom Government do not

understand Sikh politics in either the United Kingdom or India. They

do not seem to be aware of the divisive personal splits within the

United Kingdom Sikh community and the opportunity thereby created to

convey false information from apparently independent individuals who

may support or be supported by the Indian Government. Furthermore, the

struggle within local United Kingdom gurdwaras is not a terrorist based

conflict, but the normal fight for power and influence to be found in

any political group. It is certainly not a struggle concerning the

release of funds for terrorist purposes.

76.  The applicants contend that the sub-text of the Government's

submissions is that the first applicant's return to the Punjab is

desirable as a warning to others, however flawed the evidence. It is

therefore suggested that the reasons for the drop in Sikh militancy

could be the changing situation in the Punjab, now that one side has

been crushed, and fear for the consequences of speaking out in the

United Kingdom in view of what has happened to the first applicant.

This effect would have been achieved with a threat to deport any other

Sikh and is not unique to the first applicant.

77.  The applicants submit that the Government have been wrongly

influenced by defamatory newspaper articles and statements from

critics in the Sikh community, with the result that they have

unacceptably and pejoratively labelled the first applicant as a

terrorist. As the Government have not disclosed their sources of

information, it is difficult to modify this erroneous picture of him,

which in any event does not raise a national security issue. The

applicants warn against the tendency to assume that what is secret is

true.

78.  With this undisclosed background to the case, the applicants can

only speculate on what may have influenced the Government's decision.

They point to the huge investments made, and aid given by, the United

Kingdom to India, and the intense international competition for India's

capital projects. India is the only State outside the European Union

and the United States of America to benefit from special anti-terrorist

measures in extradition arrangements. The applicants suggest that the

Government's view may be blinkered by this special relationship with

India.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

79.  The Commission has declared admissible the first applicant's

complaints that his deportation to India would expose him to a real

risk of torture or inhuman or degrading treatment, that his detention

pending deportation has been too long, that the judicial control

thereof has been ineffective and slow, and that he has no effective

domestic remedy for his Convention claims because of the national

security elements in his case.

80.  The Commission has also declared admissible the complaint of all

the applicants that the deportation of the first applicant would breach

their right to respect for family life, for which Convention claim they

have no effective domestic remedy.

B.   Points at issue

81.  The points at issue in the present case are as follows:

-    whether there would be a violation of Article 3 (Art. 3) of the

     Convention in the first applicant's case if he were to be

     deported to India;

-    whether there has been a violation of Article 5 para. 1 (Art. 5-

     1) of the Convention in the first applicant's case as regards the

     lawfulness and length of his detention;

-    whether there has been a violation of Article 5 para. 4 (Art. 5-

     4) of the Convention in the first applicant's case, both as

     regards the nature of the judicial controls in his case and their

     speed;

-    whether there would be a violation of Article 8 (Art. 8) of the

     Convention for all the applicants if the first applicant were to

     be deported to India; and, finally,

-    whether there has been a violation of Article 13 (Art. 13) of the

     Convention.

C.   As regards Article 3 (Art. 3) of the Convention

82.  Article 3 (Art. 3) of the Convention provides as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

83.  The first applicant contends that he has adequately shown that

he runs a real risk of death or torture in custody if returned to

India, contrary to Article 3 (Art. 3) of the Convention. He refers to

the elements listed above (para. 26 above). He submits that he cannot

be expected to prove such a prediction.

84.  It seems likely that the first applicant would be arrested if

returned to India. Whilst the assurances of the Indian Government are

to be taken into account, they are, according to the first applicant,

of little value. The fact is that the Indian Government have been and

continue to be unable to keep in check abuses by their security forces

in the Punjab and elsewhere. No special precautionary measures or

protection have been proposed for him.

85.  Neither the Indian legal system nor the Indian Constitution,

given the emergency legislation in force, can offer sufficient

protection against death and torture in custody in cases of terrorist

suspects. For example, the Terrorist and Disruptive Activities

(Prevention) Act 1985, permits police custody without access to family

members or lawyers for up to 60 days, during which time human rights

abuses are rife. The Armed Forces (Special Powers) Act (in force since

1958) provides broadly defined powers to shoot to kill, with virtual

immunity from prosecution. The National Security Act 1980 permits

indefinite detention without trial for preventive purposes on loosely

defined grounds of national security. The first applicant underlines

that, unlike the applicants in the Vilvarajah case, he does not fear

persecution from random terrorist violence in India, but from the State

security forces (cf. Eur. Court H.R., Vilvarajah and Others judgment

of 30 October 1991, Series A no. 215). The situation is unlikely to

improve, given the absence of enduring political initiatives in India.

86.  The Home Secretary appears to accept the broad picture of deaths

in custody and torture disclosed by Amnesty International reports on

India. However he concluded that such security force abuses had been

provoked by terrorists. The first applicant disputes this reasoning and

contends that the motives of the torturers are irrelevant to the

Article 3 (Art. 3) issue. Moreover he was unable to challenge this

reasoning before the domestic courts, despite the concerns expressed

by the judges dealing with the case. These concerns were not assuaged

by a mere finding that the United Kingdom Government was not acting

illegally overall in deciding to deport the first applicant.

87.  The first applicant contends that it is almost cynical to suggest

that the situation in the Punjab has now greatly improved, when the

decision to deport him was taken, and was to be enforced, at a time

which the Government now concede was highly dangerous (see paras. 63-65

above). Thousands of people were killed annually and there were

notorious human rights abuses, including torture and disappearances,

perpetrated by the security forces and the police especially, towards

people whose custody was frequently not even recorded. If it had not

been for the judicial review and Strasbourg proceedings, the first

applicant would have been sent back to a similar fate. He asserts that

the relevant date for the assessment of the risk he would suffer under

Article 3 (Art. 3) of the Convention was 1 June 1992, the date of the

renewed decision to refuse asylum and to deport him to India,

irrespective of the merits of his asylum claim. This was the period

upon which the domestic courts focused during the judicial review

proceedings.

88.  If the Commission considers that it should examine present day

conditions, the first applicant submits that it is too early to say

that the situation in the Punjab is without risk for him, and far too

early to write off the past years of intense violence as if they have

no implications for the present. The creation of the National Human

Rights Commission is to be welcomed, but its effects are not yet felt.

It is noteworthy that in 1994 it was investigating hundreds of

complaints against the Punjab police, and that it had expressed serious

reservations about the unaccountability of the police and the arbitrary

operation of the emergency laws. That Commission's powers are also

severely limited and its membership apparently lacks objective

independence. It cannot replace an independent, impartial, adequately

resourced and accessible judiciary. However, there is no evidence that

the judiciary are yet in a position to control the police and end the

impunity of their operations. As an example of the latter, it is

alleged that certain Sikhs, who have been recently returned by Canada

to India, have been arrested and have either disappeared or have been

detained without charge or trial.

89.  Not only does the first applicant assert that he faces a real

risk of treatment contrary to Article 3 (Art. 3) of the Convention, but

he also asserts that the disputed national security question is

irrelevant to the Article 3 (Art. 3) issue. In his view Article 3

(Art. 3) of the Convention, unlike the 1951 United Nations Convention

on the Status of Refugees examined by the domestic courts in the

present case, provides absolute protection against being sent to a

country where such a real risk exists. This absolute protection is not

subject to a qualification of proportionality.

90.  Reliance for these propositions is placed, inter alia, on a

comparison with Article 3 (Art. 3) of the 1984 United Nations

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, the absence of reciprocal obligations in

asylum matters and the fact that the first applicant is not an alien

in the United Kingdom but a Commonwealth citizen with strong ties to

that country and, who, prior to 1971, would have had a right of abode

there.

91.  If there is a proportionality issue, the first applicant states

that he has not violated English rules or regulations. He categorically

denies the Government's allegations of terrorist activity. The first

applicant points out that he has not been offered an opportunity to

clear his name and there is evidence that he has been the victim of

misinformation. He contends that none of the elements raised by the

Government constitute a threat to the national security of the United

Kingdom. Certain allegations, such as that involving a ceremonial sword

or misappropriation of funds, are matters which could have been dealt

with by the criminal process. The Government have been unduly

influenced by their reciprocal relations with India and the general

desire to discourage Sikh militancy in the United Kingdom. Such matters

have no relevance to the latter's national security and cannot justify

exposing the first applicant to severe ill-treatment and separation

from his family.

92.  The Government deny that the first applicant could be a victim

of a violation of Article 3 (Art. 3) of the Convention. They contend

that, contrary to the view of the Court in the Soering and Vilvarajah

cases, Article 3 (Art. 3) of the Convention has no extra-territorial

effect, but should be construed as a prohibition on a Member State

exposing persons within its own jurisdiction to torture or to inhuman

or degrading treatment (cf. Eur. Court H.R., Soering judgment of 7 July

1989, Series A no. 161, pp. 32-36, paras. 81-91, and Vilvarajah and

Others judgment of 30 October 1991, Series A no. 215, p. 34,

paras. 102-103).

93.  Alternatively, the Government contend that, even if Article 3

(Art. 3) of the Convention has extra-territorial effect, the first

applicant's return to India would not involve a breach of the Article.

They place particular reliance on the assurances provided by the Indian

High Commission (para. 38 above) and on the view of one Court of Appeal

judge that much of the evidence of persecution and torture in the past

provided by the applicant was second-hand or even more remote, and

could in part be said to be evidence of impression rather than fact.

They assert that the Sikh troubles have considerably declined and that

this applicant could avoid involvement in possible future incidents by

living outside the Punjab.

94.  The Government stress that the first applicant's case has been

considered at the highest level and with extreme care. The Home

Secretary personally took the decision to deport him after considering

the opinion of a panel of qualified advisers, which included a senior

judge. That panel had before it sensitive material which could not be

disclosed to the applicants. Furthermore, there have been two series

of judicial review proceedings following the decision to deport. The

Government refute the applicants' claim that they have been unduly

influenced by false, defamatory reports in the Indian press. This did

not form any part of the Government's information. For the Government,

the first applicant is not merely a threat to public order, but a

terrorist, whose deportation is fully justified on grounds of national

security.

95.  The revocation of the deportation order and the release of the

first applicant back into the community would seriously undermine

national security, with the revitalisation of the southern faction of

the ISYF, the recurrence of intimidation of moderate Sikhs in the

United Kingdom, the commission of further terrorist acts there, the

increase in the financing, direction and control of terrorist

operations outside the United Kingdom, especially in India, and the

encouragement of Sikh terrorists to regard the United Kingdom as a safe

haven from which they can continue their terrorist activities.

Moreover, the negative effect on the general fight against terrorism

cannot be ignored.

96.  On the basis of the test laid down in the Vilvarajah judgment

(Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991,

Series A no. 215, p. 34, paras. 102-103), the Government contend that

the first applicant does not face a real risk of torture or persecution

in the Punjab or elsewhere in India for the following reasons:

     a)   Sikhs are not a persecuted group per se; India has a

          secular constitution which guarantees freedom of religious

          belief and practice to all, as well as an independent

          judiciary;

     b)   the principal events upon which the first applicant based

          his claim for asylum occurred in India before 1985;

     c)   the events of early 1984 should be viewed in the context of

          a significant increase of terrorist activity in the Punjab

          in 1984, heightened tension in that region and ill-

          discipline on the part of the members of the Indian

          security forces;

     d)   whilst the Amnesty International reports were substantially

          accurate in demonstrating that serious human rights

          violations had been committed by individual members and

          groups within the Indian security forces in the Punjab, it

          was not accepted that each and every aspect of those

          reports was true; the majority of the alleged incidents

          were not capable of independent or objective verification;

     e)   furthermore, the Amnesty International reports failed to

          recognise what, in the Government's view, was the principal

          reason for the presence of the Indian security forces in

          the Punjab, namely the combating of serious terrorist

          activity and the maintenance of law and order;

     f)   the situation in the Punjab has been positively transformed

          over the last 18 months, the number of reported deaths in

          terrorist related incidents having been reduced to a

          minimum and the democratic processes having been restored;

          therefore, the material relied on by the applicants,

          including Amnesty reports, is out of date and no

          conclusions can be drawn, in relation to the first

          applicant's present position, from uncorroborated details

          of cases of individual abuse which occurred before the

          situation improved;

     g)   the international criticism of the abuse of detainees and

          other human rights abuses by law enforcement authorities is

          now being taken seriously by the Indian Government, which

          has demonstrated a clear change in attitude, with the

          creation, for example, of the National Human Rights

          Commission (see para. 64 above);

     h)   the Canadian High Commission have followed up recent cases

          of people returned to India who claimed terrorist

          involvement and likely ill-treatment as a result, but in no

          case have such claims been borne out;

     i)   if the first applicant were returned to India, there is a

          prospect that he would be arrested and charged with

          terrorist offences according to Indian law;

     j)   if so charged, the first applicant would receive full

          protection by the Indian Government from mistreatment while

          held in custody; given his profile, there is bound to be

          considerable press and public interest in him, which

          reduces the risk of abuse;

     k)   if the first applicant were not arrested by the Indian

          authorities on his return to India, but remained at

          liberty, then he faces a risk (as does any other person in

          the Punjab) of violence from terrorist outrage;

     l)   insofar as the first applicant faces a risk from the

          activities of members of the security forces acting outside

          the law, such violations of Indian law have not been

          condoned by the Indian or state Governments, and the first

          applicant will benefit from the High Commissioner's

          assurance.

97.  An alien on British territory enjoys absolute protection from

ill-treatment contrary to Article 3 (Art. 3) of the Convention. However

it is argued that Article 3 (Art. 3) is subject to implied limitations,

qualifications or derogations, where it is proposed to deport an alien

outside the jurisdiction of the Convention for reasons of national

security.

98.  The Government contend that it has been a constant theme in

international jurisprudence over the centuries that the right of an

alien to refuge is subject to necessary qualifications. Asylum is to

be enjoyed by people "who suffer from undeserved enmity, not those who

have done something that is injurious to human society or to other men"

(Hugo Grotius "De Jure Belli ac Pacis" (1623)). This is reflected in

Articles 32 and 33 of the 1951 Convention Relating to the Status of

Refugees.

99.  The Government submit that Article 3 (Art. 3) was never intended

to cover cases of the present kind. Contracting Parties have a right

and duty to weigh the risk of torture against the harm caused to

national security by the continued presence of an alien on its

territory.  However this balancing exercise is non-justiciable. It

cannot be the role of the national courts or the Convention organs to

make any searching judicial scrutiny of national security matters, once

raised by the Member State in good faith. It is not possible to

evaluate the evidence on which the executive bases its decisions on

national security.

100. The Government aver that their decision on national security in

relation to the first applicant has been made in good faith and

possesses substance. It has been weighed against his personal

circumstances.

101. The Commission rejects the Government's challenge to the constant

case-law of the Convention organs under Article 3 (Art. 3) of the

Convention and reaffirms the following principles:

     "103. ... (the) expulsion by a Contracting State of an asylum

     seeker may give rise to an issue under Article 3 (Art. 3), and

     hence engage the responsibility of that State under the

     Convention, where substantial grounds have been shown for

     believing that the person concerned faced a real risk of being

     subjected to torture or to inhuman or degrading treatment or

     punishment in the country to which he was returned. ...

     107. ...  (2) Further, since the nature of the Contracting

     State's responsibility under Article 3 (Art. 3) in cases of this

     kind lies in the act of exposing an individual to the risk of

     ill-treatment, the existence of the risk must be assessed

     primarily with reference to those facts which were known or ought

     to have been known to the Contracting State at the time of the

     expulsion; the [Convention organs are] not precluded, however,

     from having regard to information which comes to light subsequent

     to the expulsion. ...

     ...       (3) Ill-treatment must attain a minimum level of

     severity if it is to fall within the scope of Article 3 (Art. 3).

     The assessment of this minimum is, in the nature of things,

     relative; it depends on all the circumstances of the case.

     108. The [Convention organs'] examination of the existence of a

     risk of ill-treatment in breach of Article 3 (Art. 3) at the

     relevant time must necessarily be a rigorous one in view of the

     absolute character of this provision and the fact that it

     enshrines one of the fundamental values of the democratic

     societies making up the Council of Europe." (Eur. Court H.R.,

     Vilvarajah and Others judgment of 30 October 1991, Series A no.

     215, p.34, para. 103, and p.36, paras. 107-108.)

102. The Commission is further unable to accept the Government's

submission that Article 3 (Art. 3) of the Convention may have implied

limitations entitling the State to expel a person because of the

requirements of national security, notwithstanding the existence of a

real risk that the person concerned would be subjected to torture or

to inhuman or degrading treatment in the receiving State. As appears

from the above passage in the Vilvarajah and Others judgment, the

guarantees of Article 3 (Art. 3) of the Convention are of an absolute

character, permitting no exception.

103. For the same reason, the Commission cannot accept the

Government's submission that under Article 3 (Art. 3) of the Convention

the risk of ill-treatment, if the person is to be returned, is to be

weighed against the threat to national security if he remains in the

deporting State. It is true that in its Soering judgment (Eur. Court

H.R., Soering judgment of 7 July 1989, Series A no. 161, p. 35,

para. 89), the Court observed that "inherent in the whole of the

Convention is a search for a fair balance between the demands of the

general interest of the community and the requirements of the

protection of the individual's fundamental rights." The Court moreover

noted that the danger for a State obliged to harbour a fugitive was a

consideration which must "be included among the factors to be taken

into account in the interpretation and application of the notions of

inhuman and degrading treatment or punishment in extradition cases."

104.  Nevertheless, once the risk to the individual of being subjected

to such treatment has been established, it is not the case, in the

Commission's view, that the individual's background, or the threat

posed by him to the national security of the deporting State, can be

weighed in the balance so as to reduce the level of protection afforded

by the Convention. To this extent the Convention provides wider

guarantees than Articles 32 and 33 of the 1951 United Nations

Convention Relating to the Status of Refugees. While it is accepted

that this may result in undesirable individuals finding a safe haven

in a Contracting State, the Commission observes that the State is not

without means of dealing with any threats posed thereby, the individual

being subject to the ordinary criminal laws of the country concerned.

105.  Accordingly, even if the Commission were in a position to assess

for itself the strength of the Government's untested allegations about

the first applicant's terrorist activities and the threat posed by him

to national security, this could not affect the central question which

requires determination under Article 3 (Art. 3) of the Convention,

namely whether the first applicant has shown substantial grounds for

believing that he faces a real risk of being subjected to torture or

inhuman or degrading treatment or punishment if returned to India.

106. A further issue is raised as to the point of time at which this

risk is to be assessed. It is submitted by the first applicant that his

complaint under Article 3 (Art. 3) of the Convention must principally

focus on the foreseeable consequences of his deportation to India in

June 1992, when the Home Secretary expressed his renewed determination

to proceed with the deportation measure. It is pointed out that it was

this period which was under scrutiny before the domestic courts.

Reliance is placed in this regard on the observations of the Court in

the Vilvarajah and Others judgment that the existence of the risk must

be assessed primarily with reference to those facts which were known,

or ought to have been known, to the Contracting State at the time of

the expulsion, even though regard may also be had to information which

comes to light thereafter (para. 101 above).

107.  The Commission cannot accept this argument. The Convention

organs are required to determine whether, if returned, an applicant

faces a real risk of treatment contrary to Article 3 (Art. 3) of the

Convention. It follows that this assessment must be made at the time,

and on the basis of information available, when the deportation is to

take place. In this respect the case of Vilvarajah and Others is to be

distinguished from the present case since the expulsion had already

occurred when the Court was considering those applications. In the

present case, although it was the intention to deport the first

applicant in June 1992, the deportation did not take place and he

continues to remain in custody awaiting deportation. In these

circumstances, the Commission must consider whether, on the information

currently available, there are substantial grounds to believe that, if

deported, the first applicant would face a real risk of being subjected

to treatment contrary to Article 3 (Art. 3). In making this assessment,

the Commission has nevertheless had regard to all the information made

available to it by the parties as to the conditions prevailing in

India, and as to the gravity of the risk posed to the first applicant,

throughout the period in which he has been threatened with deportation.

108. The Commission notes that the Government now concede that 1992

was a particularly violent year in India, with 4000 deaths having been

recorded in terrorist related incidents, mainly in the Punjab. They

have also implicitly recognised that human rights abuses by the Indian

police were widespread, and that the police were relatively

unaccountable for their unlawful acts, a fact which was not helped by

the broad powers conferred by the Terrorist and Disruptive Activities

(Prevention) Act 1985. This view is strongly reinforced by Amnesty

International reports, which are both detailed and specific in their

evidence of serious human rights violations against Sikhs by individual

members and groups within the Indian security forces. As a prominent

Sikh militant, the risk to the first applicant was likely to be more

serious than that posed to other members of the Sikh community, a view

confirmed by the representations made by Amnesty International to the

Home Secretary to the effect that, if sent to India against his will,

the first applicant would be at risk of torture, "disappearance" or

extrajudicial execution.

109. The Government argue that, whatever the risk posed to the first

applicant in 1991 and 1992 when the reports relied on by him were

prepared, conditions in the Punjab have improved considerably and the

security situation has been transformed, thereby substantially reducing

the risk of ill-treatment if the first applicant were now to be

returned to India. In particular, reliance is placed on the fact that

the number of terrorist related deaths in the Punjab has fallen from

4000 in 1992 to 394 in 1993, and to 51 by the autumn of 1994. Reliance

is also placed on what is said to be a definitive change in the Indian

Government's attitude towards human rights and to the creation of the

National Human Rights Commission ("NHRC"), which had reported

positively on the improvement of the situation in the Punjab in 1994.

110. As regards the particular position of the first applicant, the

Government submit that, given his high profile, there is bound to be

considerable press and public interest in him should he be deported to

India, and that this may, in itself, serve to limit any risk of

custodial abuse. This is reinforced by the specific undertaking of the

Indian Government of June 1992 (para. 38 above) and by the agreement

of the United Kingdom Government to return the first applicant to any

international airport of his choice in India.

111. On the basis of the material before it, the Commission accepts

that there has been an improvement in the conditions prevailing in

India and, more especially, in the Punjab. The establishment of the

NHRC represents, in the view of the Commission, a particularly

significant development for the proper protection of human rights.

Nevertheless, the Commission is unable to find in the recent material

provided by the Government any solid evidence that the police are now

under democratic control or that the judiciary has been able fully to

reassert its own independent authority in the Punjab. In this

connection, the Commission recalls the complaints recorded in 1994 by

the NHRC against the police of arbitrary arrests, disappearances,

custodial deaths, fake encounters resulting in killings and the

continuing unaccountability of the police, reinforced by their powers

under the Terrorist and Disruptive Activities (Prevention) Act 1985

(para. 74 above).

112. As to the specific position of the first applicant, the

Commission notes the uncontested claims made by him  as to his past

experiences in India and the grounds for believing that his return to

India in 1992 would have been likely to expose him to serious ill-

treatment (para. 26 above). The Commission sees no reason to doubt the

continuing validity of those grounds. Further, the Commission is unable

to accept the Government's argument that the first applicant's high

public profile would be likely to reduce the risk, particularly if he

were to return to a part of India other than the Punjab. As a leading

Sikh militant, who is suspected of involvement in acts of terrorism,

and who is to be deported because of the threat he poses to the

security of the United Kingdom, the first applicant is likely to be a

person of special interest to the security forces, irrespective of the

part of India to which he is returned.

113. As to the express assurance given by the Indian Government that

the first applicant would enjoy the same legal protection as any other

Indian citizen and would have no reason to expect to suffer ill-

treatment of any kind at the hands of the Indian authorities, the

Commission is impressed by the good faith shown by the Indian

Government in providing such an assurance. Nevertheless, having regard

to the current conditions referred to above, the Commission is not

satisfied that the assurance provides an effective guarantee for the

safety of the first applicant if returned to India.

114. In the light of these considerations, the Commission is of the

opinion that substantial grounds have been established for believing

that the first applicant would be exposed to a real risk of ill-

treatment, contrary to Article 3 (Art. 3) of the Convention, if

deported to India.

     Conclusion

115. The Commission unanimously concludes that there would be a

violation of Article 3 (Art. 3) of the Convention if the first

applicant were to be deported to India.

D.   As regards Article 5 para. 1 (Art. 5-1) of the Convention

116. Article 5 para. 1 (Art. 5-1) of the Convention, as far as

relevant, provides as follows:

     "1.  Everyone has the right to liberty and security of person.

     No one shall be deprived of his liberty save in the following

     cases and in accordance with a procedure prescribed by law:

          ...

          f.   the lawful arrest or detention ... of a person against

          whom action is being taken with a view to deportation ...".

117. The first applicant submits that he has suffered a breach of this

provision because for much of the period since 14 August 1990 his

detention has not been "with a view to deportation". Instead the

proceedings have involved consideration of his asylum applications and

judicial review. These proceedings have been ineffective because of the

Government's tactics of minimum disclosure. The first applicant also

claims that the proceedings were not determined speedily since he has

been detained now for nearly five years, a period which is the

equivalent of a substantial sentence for a serious crime. He states

that it has never been alleged that he would abscond or not answer his

bail if released from detention. His substantial family ties in the

United Kingdom indicate that he would have no interest in doing so.

118. The Government contend that the first applicant has been lawfully

detained since 14 August 1990 under Article 5 para. 1 (f) (Art. 5-1-f)

of the Convention pending the deportation proceedings. In the light of

the national security considerations in the case, his release on bail

was inappropriate. The Government maintain that the case received

speedy judicial determination at the domestic level, the judicial

review proceedings being dealt with faster than usual.

119. As to the former complaint, the Commission considers that, in

principle, the first applicant has been lawfully detained under

Article 5 para. 1 (f) (Art. 5-1-f) of the Convention as a "person

against whom action is being taken with a view to deportation". It

would be unduly narrow to interpret Article 5 para. 1 (f) (Art. 5-1-f)

as confined to cases where the person is detained solely to enable the

deportation order to be implemented. The words of the provision are

broad enough to cover the case where the person is originally detained

with a view to deportation, but challenges that decision or claims

asylum, and continues to be detained pending determination of that

challenge or claim.  The first applicant was detained with a view to

deportation in August 1990. The deportation order was made in July

1991. The applicant continues to be detained for the purpose of giving

effect to that order. The fact that implementation of the decision to

deport was suspended while the Secretary of State considered the asylum

request and reconsidered the request after the judicial review

proceedings, does not affect the purpose or lawfulness of the

detention.

120. The complaint concerning the length of the first applicant's

detention was originally made under Article 5 para. 4 (Art. 5-4) of the

Convention, but the Commission considers it appropriate to examine it

first under Article 5 para. 1. (Art. 5-1) The issue which arises is

whether the first applicant's detention has ceased to be justified

because the proceedings have not been pursued with the requisite speed

(cf. Eur. Court H.R., Kolompar judgment of 24 September 1992, Series

A no. 235, p. 55, para. 36). The first applicant has been detained now

for nearly five years, albeit partly awaiting the outcome of the

Strasbourg proceedings. Nevertheless, an examination of the domestic

proceedings does not demonstrate particular diligence: three months

elapsed between the grant of leave and the first judicial review

proceedings; six months elapsed between the quashing of the first

deportation decision and the taking of the second decision; seven

months elapsed between the second grant of leave and the second

judicial review proceedings, and eight months elapsed between the

second judicial review proceedings and the determination of the first

applicant's appeal. Therefore the judicial review proceedings alone

resulted in a delay of some eighteen months, during the whole of which

period the first applicant remained in detention.

121. The Government's submission that, by comparison with the norm,

the case was dealt with expeditiously is unconvincing when the person

is detained pending deportation, unconvicted and without charge.  It

is important that proceedings to challenge the decision to deport

should be handled with the utmost expedition.  It is true that in one

sense the first applicant profited from the delay in returning him to

India, in the same way as any person profits who is facing deportation

or extradition. However, the Commission notes that his complaint is not

that he was not sent back more quickly, but rather that he was kept in

detention pending the decision being taken as to whether he should or

should not be deported. Moreover, it cannot be said that there was any

abuse of the judicial review process by the first applicant in order

to delay his deportation.

122. In these circumstances, the Commission is of the opinion that the

proceedings in the present case were not pursued with the requisite

speed and that, therefore, the first applicant's detention ceased to

be justified.

     Conclusion

123. The Commission unanimously concludes that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason

of the length of the first applicant's detention.

E.   As regards Article 5 para. 4 (Art. 5-4) of the Convention

124. Article 5 para. 4 (Art. 5-4) of the Convention reads as follows:

     "Everyone who is deprived of his liberty by arrest or detention

     shall be entitled to take proceedings by which the lawfulness of

     his detention shall be decided speedily by a court and his

     release ordered if the detention is not lawful."

125. The first applicant claims under Article 5 para. 4 (Art. 5-4) of

the Convention to have been denied an opportunity effectively to

contest the lawfulness of his detention before the domestic courts,

because of the broad effect of the untested national security

allegations against him. This is confirmed by the change in the

evidential basis of the case, only put to the Commission in December

1994 and previously not known to the applicants. Hence it could not be

challenged and tested by the domestic courts. The first applicant also

claims that the judicial review proceedings were not determined

speedily.

126. The Government contend that the first applicant had adequate

judicial control of the lawfulness of his detention in his two bail

applications, which were dealt with by the High Court, and that the

proceedings were handled speedily.

127. As to the former complaint, the Commission notes that the issue

of the adequacy of the remedies at the disposal of the first applicant

was principally addressed by the parties under Article 13 (Art. 13) of

the Convention and generally limited to argument about the remedy of

judicial review. The Commission is of the opinion that it is more

appropriate to consider this issue under Article 13 (Art. 13) of the

Convention (see paras. 141-151 below).

128. As to the complaint concerning the speediness of the proceedings,

the Commission considers that in view of its conclusion that the

duration of the first applicant's detention gave rise to a violation

of Article 5 para. 1 (Art. 5-1) of the Convention, it is not necessary

to examine this complaint separately under Article 5 para. 4 (Art. 5-

4).

     Conclusion

129. The Commission concludes, by 16 votes to 1, that it is not

necessary to examine the complaints under Article 5 para. 4 (Art. 5-4)

of the Convention.

F.   As regards Article 8 (Art. 8) of the Convention

130. Article 8 (Art. 8) of the Convention, as far as relevant,

provides as follows:

     "1.  Everyone has the right to respect for his private and

     family life ... .

     2.   There shall be no interference by a public authority with

     the exercise of this right except such as is in accordance with

     the law and is necessary in a democratic society in the interests

     of national security ...".

131. The applicants allege that the deportation of the first applicant

would breach their right to respect for private and family life. They

underline the fact that, if there was any cogent evidence against the

first applicant of terrorist activities in the United Kingdom, a

criminal prosecution could have been instituted against him.  The

absence of such a prosecution casts grave doubts on the allegations and

the material upon which the Home Secretary has based his decisions.

This shows that the national security reasons are not serious or

compelling. The first applicant is a victim of a sophisticated

distortion of information perpetrated by or on behalf of the Indian

Government and by untrue Indian newspaper reports. Information which

is short of admissible evidence in a criminal case should not form the

basis of a decision to expose someone to a risk of torture.

132. The applicants deny that the first applicant's deportation is

justified on national security grounds. They rely on the same reasons

as those put forward by the first applicant in refuting the national

security allegations under Article 3 (Art. 3) of the Convention. The

applicants point out that the first applicant has strong, settled ties

in the United Kingdom, having lived there for 19 years and founded a

family. He should therefore not be treated differently from other

Commonwealth citizens who, not so long ago, had a common law right of

abode in that country. Reliance is placed on the Beljoudi judgment

(Eur. Court H.R., Beldjoudi judgment of 26 March 1992, Series A

no. 234-A).

133. The Government accept that the deportation of the first applicant

would constitute an interference with the applicants' rights to respect

for family life. However, the Government submit that the interference

is necessary in the interests of national security, within the meaning

of the second paragraph of Article 8 (Art. 8). The Government consider

that the Commission is not in a position to evaluate the extreme

seriousness of the national security risk posed by the first applicant

in the present case. It is further submitted that the strength of the

national security case is by no means undermined by the absence of any

successful criminal prosecution against the first applicant: much of

the material upon which the Home Secretary has been acting is of a

confidential nature and could not be deployed in criminal proceedings.

134. The Commission notes that the interference with the applicants'

right to respect for private and family life was in accordance with the

law and pursued the legitimate aim of protecting the interests of

national security. The only remaining issue, therefore, is whether the

deportation of the first applicant would be proportionate to that aim

and, therefore, "necessary in a democratic society" within the meaning

of Article 8 para. 2 (Art. 8-2) of the Convention.

135. The Commission considers that the interference with the Article

8 (Art. 8) rights of the applicants is a serious one.  The first

applicant has lived lawfully in the United Kingdom for some 19 ½ years

and his wife 19 years; their two children were born and brought up in

the United Kingdom and are United Kingdom's citizens. Both are still

teenagers. The deportation of the first applicant would almost

certainly lead to a permanent break up of the family.  While the first

applicant clearly still has close family links in India, there is a

strong risk that if returned he would be arrested and detained, quite

possibly for a substantial period without charge or trial and, on any

view, with some risk that he would be ill-treated.

136. Whilst the Commission acknowledges that States enjoy a wide

margin of appreciation under the Convention where matters of national

security are concerned, with possibly lower standards of proof being

required under Article 8 (Art. 8) compared to Article 3 (Art. 3), it

remains ultimately for the Government to satisfy the Commission that

the grave recourse of deportation is in all the circumstances both

necessary and proportionate.

137. The Commission is struck by the fact that the first applicant has

no criminal record. He has not been convicted of any terrorist crime

or indeed of any serious crime, even though it is clear that the

allegations made against him would, if proved, constitute serious

offences in both the United Kingdom and India. It may be true that

terrorist offences are difficult to prove because of the problems of

obtaining admissible and usable evidence. Nevertheless, it is apparent

from the experience in the United Kingdom that successful prosecutions

for terrorist offences are possible.

138. Further, the Commission observes that the matters which are now

relied on by the Government, in support of their claim that the first

applicant poses a threat to national security, were not placed before

the domestic courts, and that the allegations against him remain

untested.

139. Having regard to these various considerations, the Commission is

of the opinion that, even allowing for the wide margin of appreciation

afforded to the Government, the decision to deport the first applicant,

if put into effect, would not be proportionate to the legitimate aim

pursued, and would not therefore be necessary within the meaning of

Article 8 para. 2 (Art. 8-2) of the Convention.

     Conclusion

140. The Commission unanimously concludes that there would be a

violation of Article 8 (Art. 8) of the Convention if the first

applicant is deported to India.

G.   As regards Article 13 (Art. 13) of the Convention

141. Article 13 (Art. 13) of the Convention reads 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."

142. The applicants maintain that they had no effective remedy for

their Convention claims. They contend that the evaluation by the

European Court of Human Rights of the efficacy of judicial review in

the Vilvarajah case is flawed, but that anyway their application is

distinguishable.

143. It is contended that English courts have no jurisdiction to

establish the existence of a risk of torture in the receiving State.

The courts may not go beyond the terms of the immigration rules which

make no reference to the Convention or the UN Convention against

Torture. The national security allegations reduce even further the

review which could be made by the domestic courts. Significantly, since

the Vilvarajah case, a right of appeal to an independent adjudicator

has been created by the Asylum and Immigration Appeals Act 1993 for

those refused asylum, except in national security cases of the present

kind.

144. The amplified national security case presented to the Commission

by the Government in their observations on 23 December 1994,

demonstrates even further the need for a fair and effective hearing at

which allegations are made and substantiated, and an opportunity given

to rebut them. In the United Kingdom where the "public good" in removal

is relied on, the whole process of investigating and determining asylum

claims under any humanitarian obligation, and determining the existence

of reasons of national security and other reasons of public good, are

dealt with as a matter of unchallengeable executive discretion.

145. The Commission has been given data which was not before the

national courts. In the applicants' submission, it cannot be said that

the Members of the Commission could be trusted with material not

suitable for disclosure to such courts. The nature of the material

disproves any overriding question of confidentiality. The national

courts and the applicants appear to have been misled as to the limits

of disclosure and deprived of material which could have been considered

domestically.

146. The Government rely on the Court's jurisprudence in the case of

Soering and Vilvarajah for the proposition that judicial review

provides an adequate remedy in cases of the present kind (Eur. Court

H.R., Soering judgment of 7 July 1989, Series A no. 161, and Vilvarajah

and Others judgment of 30 October 1991, Series A no. 215).

147. The Commission is required to consider whether the applicants had

an effective remedy, by way of judicial review, in respect of their

claims under the Convention, that is, the first applicant's claims

under Articles 3 and 5 (Art. 3-5) of the Convention, and all the

applicants' claims under Article 8 (Art. 8).

148. The Commission notes that in its Vilvarajah and Others judgment,

the Court held that the scope of the domestic courts' review of the

Home Secretary's refusal to grant asylum was sufficiently wide to

satisfy the requirements of Article 13 (Art. 13) of the Convention

(above mentioned Vilvarajah and Others judgment, pp. 39-40, paras. 123-

127).

149. However, the present case is distinguishable from that of

Vilvarajah and others, having regard to the national security claim.

As appears from the Court of Appeal's judgment (paras. 43-46 above),

where national security considerations are invoked as a ground for the

deportation decision, the powers of review of domestic courts are

limited to determining, first, whether the decision of the Home

Secretary that the deportation was required for reasons of national

security was irrational, perverse or based on a misdirection and,

secondly, whether there was sufficient evidence that the Home Secretary

balanced the gravity of the national security risk against all other

circumstances, including the likely risk of persecution if the person

were deported.

150. As the Court of Appeal pointed out, the scrutiny of the claim

that a person should be deported in the interests of national security

may in practice be defective or incomplete if all the relevant facts

are not before the courts. This deficiency is illustrated by the facts

of the present case, in that the domestic courts did not even have

available to them the further information which has been put before the

Commission concerning the perceived threat posed by the first applicant

to the national security of the United Kingdom.

151. Furthermore, even when the relevant facts are before the courts,

they are not empowered to carry out their own assessment of the

respective risks, but are confined to reviewing whether there is

sufficient evidence that the necessary balancing exercise has been

carried out by the Home Secretary. Provided there is such evidence, the

courts are powerless to interfere, however strong the risk of treatment

contrary to Article 3 (Art. 3) of the Convention which is faced by the

applicant if returned to the country in question.

152. In the Commission's opinion, the power of review by United

Kingdom courts when national security is invoked is too restrictive to

satisfy the requirements of Article 13 (Art. 13) of the Convention.

     Conclusion

153. The Commission unanimously concludes that there has been a

violation of Article 13 (Art. 13) of the Convention.

H.   Recapitulation

154. The Commission unanimously concludes that there would be a

violation of Article 3 (Art. 3) of the Convention if the first

applicant is deported to India (para. 115 above).

155. The Commission unanimously concludes that there has been a

violation of Article 5 para. 1 (Art. 5-1) of the Convention by reason

of the length of the first applicant's detention (para. 123 above).

156. The Commission concludes, by 16 votes to 1, that it is not

necessary to examine the complaints under Article 5 para. 4 (Art. 5-4)

of the Convention (para. 129 above).

157. The Commission unanimously concludes that there would be a

violation of Article 8 (Art. 8) of the Convention if the first

applicant is deported to India (para. 140 above).

158. The Commission unanimously concludes that there has been a

violation of Article 13 (Art. 13) of the Convention (para. 151 above).

Secretary to the Commission          President of the Commission

       (H.C. KRÜGER)                       (C.A. NØRGAARD)

         PARTIALLY DISSENTING OPINION OF MR. TRECHSEL

     While I am generally in agreement with the majority of the

Commission, I voted against the conclusion set out in para. 129,

according to which it was not necessary to examine the complaints under

Article 5 para. 4 of the Convention.

     In my view the finding that the first applicant's detention was

not in conformity with the requirements of Article 5 para.1 of the

Convention does not cover the issue of habeas corpus proceedings. The

need for such a control is particularly acute whenever problems arise

under the first paragraph of Article 5.

     I also note that the opinion expressed by the majority is hardly

in conformity with the Court's case-law. In this respect I refer to the

Bouamar judgment (Eur. Court H.R., Bouamar judgment of

29 February 1988, Series A no. 129) where violations both of Article 5

paras. 1 and 4 of the Convention were found.

     Having regard to the facts of the present case, it must be that

Article 5 para. 4 was violated for the same reasons as those put

forward in this Report with regard to the violation of Article 13 of

the Convention.

                          APPENDIX I

                  HISTORY OF THE PROCEEDINGS

Date                     Item

_________________________________________________________________

27.07.93                 Introduction of application

04.08.93                 Registration of application

Examination of admissibility

30.07.93                 Rule 36 granted

08.09.93                 Commission's decision to communicate the

                         case to the respondent Government and to

                         invite the parties to submit observations

                         on admissibility and merits

23.12.93                 Government's observations

07.04.94                 Applicants' observations in reply

16.05.94                 Commission's decision to hold a hearing

22.07.94                 President's grant of legal aid

01.09.94                 Hearing on admissibility and merits.

                         Commission's decision to declare

                         application in part admissible and in part

                         inadmissible

Examination of the merits

12.09.94                 Decision on admissibility transmitted to

                         parties. Invitation to parties to submit

                         further observations on the merits

28.10.94                 Applicants' observations

23.12.94                 Government's observations

14.01.95                 Commission's consideration of state of

                         proceedings

31.03.95                 Applicants' further observations

20.05.95                 Commission's consideration of state of

                         proceedings

27.06.95                 Commission's deliberations on the merits,

                         final vote and consideration of text of

                         the Report. Adoption of Report

 

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