VILVARAJAH ; SKANDARAJAH ; SIVAKUMARAN ; NAVRATNASINGAM ; RASALINGAM v. THE UNITED KINGDOM



Application Nos. 13163/87, 13164/87,

13165/87, 13447/87 and 13448/87

by Nadarajah VILVARAJAH, Vaithialingam SKANDARAJAH,

Saravamuthu SIVAKUMARAN, Vathanan NAVRATNASINGAM

and Vinnasithamby RASALINGAM

against the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 8 May 1990)

                        TABLE OF CONTENTS

                                                               Pages

I.      INTRODUCTION

        (paras. 1 - 17) ......................................   1-3

        A.  The applications

            (paras. 2 - 5) ...................................    1

        B.  The proceedings

            (paras. 6 - 12) ..................................   1-2

        C.  The present Report

            (paras. 13 - 17) .................................    3

II.     ESTABLISHMENT OF THE FACTS

        (paras. 18 - 132) ....................................   4-33

        A.  The particular circumstances of the cases

            (paras. 18 - 105) ................................   4-25

            a)  The first applicant

                (paras. 18 - 34) .............................   4-10

            b)  The second applicant

                (paras. 35 - 50) .............................  10-13

            c)  The third applicant

                (paras. 51 - 70) .............................  13-16

            d)  The fourth applicant

                (paras. 71 - 86) .............................  16-20

            e)  The fifth applicant

                (paras. 87 - 95) .............................  20-22

            f)  The situation in Sri Lanka

                (paras. 96 - 100) ............................  22-24

            g)  The applicants' subsequent appeals

                and their return to the United Kingdom

                (paras. 101 - 105) ...........................  24-25

        B.  The relevant domestic law and practice

            (paras. 106 - 132) ...............................  26-33

            a)  Appeal rights of an asylum seeker under

                the Immigration Act 1971

                (paras. 106 - 112) ...........................  26-28

            b)  Judicial review

                (paras. 113 - 121) ...........................  28-31

            c)  The UKIAS referral service

                (paras. 122 - 123) ...........................   31

            d)  Members of Parliament

                (para. 124) ..................................   31

            e)  The decision making process in asylum cases

                (paras. 125 - 130) ...........................  31-33

            f)  The law and practice in the case of refugees

                to whom the 1951 UN Refugee Convention does

                not apply

                (paras. 131 - 132) ...........................   33

III.    OPINION OF THE COMMISSION

        (paras. 133 - 163) ...................................  34-42

        A.  Points at issue

            (para. 133) ......................................   34

        B.  As regards Article 3 of the Convention

            (paras. 134 - 144) ...............................  34-37

            Conclusion

            (para. 144) ......................................   37

        C.  As regards Article 13 of the Convention

            (paras. 145 - 161) ...............................  37-42

            Conclusion

            (para. 161) ......................................   42

        D.  Recapitulation

            (paras. 162 - 163) ...............................   42

Partly dissenting opinion of MM. Trechsel, Ermacora,

Gözübüyük, Campinos, Mrs.  Thune, Mr.  Rozakis and

Mrs.  Liddy, as regards the issue under Article 3

of the Convention ............................................   43

Further dissenting opinion of Mrs.  Liddy as regards

the issue under Article 13 of the Convention .................   44

APPENDIX I :  History of the proceedings

              before the Commission ..........................  45-46

APPENDIX II:  Decision of the Commission on the

              admissibility of the applications ..............  47-75

I.      INTRODUCTION

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

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

Commission.

A.      The applications

2.      The applications are brought by five citizens of Sri Lanka, of

Tamil ethnic origin.

3.      The first applicant, Mr.  Nadarajah Vilvarajah, was born in

1960.  At the time of lodging his application he was detained at H.M.

Detention Centre Latchmere, England, pending his removal to Sri

Lanka.  The second applicant, Mr.  Vaithialingam Skandarajah, was born

in 1958 and was detained in the same place as the first applicant

awaiting removal when he lodged his application.  The third applicant,

Mr.  Saravamuthu Sivakumaran, was born in 1966.  At the time of lodging

his application he was temporarily resident in Morden, Surrey, whilst

awaiting his removal to Sri Lanka.  The fourth applicant, Mr.  Vathanan

Navratnasingam, was born in 1970.  When he lodged his application he

was temporarily resident in Ilford, Essex, pending removal.  The fifth

applicant, Mr.  Vinnasithamby Rasalingam, was born in 1961 and was

temporarily resident in Southall, Middlesex, whilst awaiting removal

to Sri Lanka when he lodged his application to the Commission.

4.      The applicants were represented before the Commission by Mr.

D. Burgess and Mr.  C. Randall, both solicitors with Messrs.

Winstanley-Burgess, solicitors, London, and by Mr.  N. Blake, Counsel.

The respondent Government were represented by their Agent, Mr.  M.

Wood, succeeded by Mr.  N. Parker, both of the Foreign and Commonwealth

Office, Mr.  M. Baker, Counsel, Mr.  J. Eadie, Counsel, and Mr.  D.

Seymour and Mr.  N. Sanderson, both of the Home Office.

5.      The applications concern the refusal of the applicants'

requests for asylum in the United Kingdom and their removal to Sri

Lanka where they alleged that, as young male Tamils, they had

reasonable grounds to fear persecution, torture, arbitrary execution,

or inhuman or degrading treatment.  The cases also concern the

efficacy of remedies in the United Kingdom to determine the

reasonableness of such claims.  They raise issues under Articles 3

and 13 of the Convention.

B.      The proceedings

6.      The first three applications were introduced on 26 August 1987

and registered on the same day.  They were presented with another

application by a Tamil, No. 13162/87.  The latter had requested the

Commission to intercede to stay his removal from the United Kingdom,

pursuant to Rule 36 of the Commission's Rules of Procedure.  This was

refused by the Acting President of the Commission on 26 August 1987,

but that same day the Secretary to the Commission gave notice of all

four applications to the respondent Government, pursuant to Rule 41 of

the Rules of Procedure.  (Application No. 13162/87 was declared

inadmissible on 9 November 1987.)

7.      Following the House of Lords' judgment of 16 December 1987,

refusing judicial review of the Secretary of State's decision to

remove the applicants, a further Rule 36 request concerning a stay of

removal was made by the three applicants' representatives.  At the

same time the fourth and fifth applications were introduced with the

same Rule 36 request.  The Commission decided on 18 December 1987 not

to make any Rule 36 indication in the circumstances of the five cases

as presented to it.

8.      After a preliminary examination of the cases by the

Rapporteur, the Commission considered the admissibility of the

applications on 13 April 1988 and decided to request the parties'

written observations on the admissibility and merits of the

applications pursuant to Rule 42 para. 2(b) of its Rules of Procedure.

9.      The Government lodged their observations on 31 August 1988,

after an extension of the time-limit fixed for their submission.  The

applicants' representatives submitted observations in reply on

24 November 1988.  Legal aid had been granted to the second and fourth

applicants by the President of the Commission on 11 November 1988.

10.     On 10 March 1989 the Commission adjourned its examination of

the cases pending the decision of the adjudicator which was imminent

(13 March 1989).  On 11 April 1989 the Commission joined the

applications and decided to invite the parties to an oral hearing on

admissibility and merits.

11.     The hearing was held on 7 July 1989 with the parties

represented as above (para. 4).  Following the hearing and

deliberations, the Commission declared the applications admissible.

On 10 August 1989 the parties were sent the text of the Commission's

decision on admissibility and they were invited to submit further

written observations on the merits of the cases.  The Government

submitted their observations on 6 October 1989, followed by the

applicants on 11 October 1989.

12.     After declaring the cases 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' reactions the

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

can be effected.

C.      The present Report

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

pursuance of Article 31 para. 1 of the Convention and after

deliberations and votes, the following members being present:

                MM.  C.A. NØRGAARD, President

                     S. TRECHSEL

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     A.S. GÖZÜBÜYÜK

                     A. WEITZEL

                     J.C. SOYER

                     G. BATLINER

                     J. CAMPINOS

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                M.   C.L. ROZAKIS

                Mrs.  J. LIDDY

14.     The text of this Report was adopted by the Commission on

8 May 1990 and is now transmitted to the Committee of Ministers of

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

Convention.

15.     The purpose of the Report, pursuant to Article 31 para. 1 of

the Convention, is

        1)   to establish the facts, and

        2)   to state an opinion as to whether the facts found

             disclose a breach by the State concerned of its

             obligations under the Convention.

16.     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 forms Appendix II.

17.     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 cases

        a)  The first applicant

18.     Before going to the United Kingdom the first applicant was an

assistant in his father's shop at Paranthon, Kilinochchi District,

Northern Province.  Kilinochchi is near Vavuniya, bordering on the

Sinhala area.  The first applicant's district was under constant

attack by the armed forces, which had established a camp there.  On

several occasions the army had attacked, killed and destroyed people

and property.  The first applicant's cousin, whilst working in the

fields, was killed, together with five other men, by the army in 1986,

and the family's shop was raided and damaged on 28 March 1987.

19.     The first applicant stated that he was detained twice by naval

forces in March and April 1986 and assaulted.  On this first occasion

he was driving a mini-bus, which broke down close to a naval base.  A

naval patrol detained the first applicant and his passengers for 10

hours.  He claims to have been heavily beaten.  On the second occasion,

whilst driving the mini-bus, he was stopped by a naval patrol and

detained for 24 hours.  They accompanied the bus back to his home town

of Karainagar where they opened fire at random on the people there.

Fire was also exchanged between a Tamil separatist group, the

Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), and navy

personnel, who used the bus passengers as shields.

20.     Young men like the first applicant were arrested by the army

and disappeared.  Others were tortured and can no longer lead useful

lives.  Many innocent people were killed by the State's armed forces.

The State air force indiscriminately bombed the Tamil areas,

helicopters shooting at those fleeing the air raids.

21.     During a major Sri Lankan army offensive to retake the

Northern Province from the LTTE, the first applicant's family lost

their shop and belongings and were at serious risk of losing their

lives, particularly the first applicant, a young male Tamil.

Accordingly his father sent him to Colombo in May 1987 where he

arranged with an agent for the first applicant to be sent to London.

The first applicant travelled on his own passport to Madras on 6 June

1987.  On 10 June 1987 he travelled with a Malaysian passport

(provided by an agent in Madras) to London via Bombay.  He arrived in

London on 11 June 1987 and sought entry to the United Kingdom as a

visitor for two days, in transit to Montreal, Canada, where he said he

was going for a holiday.  He was detained pending inquiries.  As he

later admitted, he was not the rightful holder of the Malaysian

passport in which his photograph had been substituted for that of its

owner.  The first applicant was, therefore, refused leave to enter

under paragraph 3 of the Statement of Changes in Immigration Rules

which requires that persons seeking admission must produce a valid

passport or other identity/nationality document.  On 12 June 1987 the

first applicant requested asylum in the United Kingdom under the

United Nations Convention of 1951 relating to the Status of Refugees,

as amended by the Protocol of 1967 (hereafter referred to as the 1951

Refugee Convention).

22.     On 19 June 1987 the first applicant was interviewed by

immigration officers in the Tamil language with the assistance of an

interpreter.  He stated that it was unsafe for him to remain in Sri

Lanka due to the Government's operations around Jaffna for the reasons

outlined above.  The solicitors previously representing the first

applicant made no representations to the Home Office on his behalf.

23.     In accordance with paragraph 73 of the Rules, the first

applicant's asylum request was referred to the Refugee Section of the

Immigration and Nationality Department of the Home Office.  However

they concluded that the applicant had not shown that he had a

well-founded fear of persecution for the purposes of the 1951 Refugee

Convention.  This conclusion was endorsed by Home Office Ministers

and, on 20 August 1987 (a Thursday), the Secretary of State for the

Home Department refused the first applicant's request in the following

terms:

        "You have applied for asylum in the United Kingdom on the

        grounds that you hold a well-founded fear of persecution

        in Sri Lanka for reason of race, religion, nationality,

        membership of a social group or political opinion.  You

        said it was unsafe for you to remain in Sri Lanka due

        to Government operations around Jaffna.  You also said

        you had been detained on two occasions in March and April

        1986 for 10 hours and 24 hours respectively and that on

        28 March 1987 the army raided your family business.  But

        it is noted that the incidents you have related were

        random and part of the army's general activities directed

        at discovering and dealing with Tamil extremists and that

        they do not constitute evidence of persecution.

        You have produced no other evidence in support of your

        application for asylum.

        The Secretary of State has considered the individual

        circumstances of your case and in addition the situation

        in Sri Lanka and has concluded that you have not

        established a well-founded fear of persecution in Sri Lanka.

        Accordingly your application for asylum is refused.  Since

        you do not otherwise qualify to enter the United Kingdom,

        the Immigration Service has been instructed to arrange for

        your removal to Sri Lanka to which country you are

        returnable under para. 10 of schedule 2 Immigration Act 1971."

24.     Since the first applicant did not otherwise qualify for leave

to enter the United Kingdom under the Immigration Rules, arrangements

for his removal to Sri Lanka were made for 22 August 1987 (the

Saturday).  He instructed his present representatives, who are

experienced in such cases, to apply to the High Court for judicial

review of the Secretary of State's decision.  The solicitors had

considerable difficulty obtaining instructions, given the delay which

occurred in procuring the necessary permission from the Governor of HM

Remand Centre, Latchmere, where the first applicant was detained, the

latter's ignorance of English and the urgency of his situation.  They

worked through Thursday night to prepare the necessary paper work,

inevitably sketchy, for the Friday.  The case before the High Court

was delayed so that Treasury Counsel could attend.  (Although such

cases are usually argued initially by an applicant without the Home

Office representative, Treasury Counsel, present, i.e. ex parte, the

Home Office nowadays seeks to submit argument from the outset.)  The

single judge refused the application.  A similar application to a

single judge in the Court of Appeal was also unsuccessful.  By this

time it was too late in the afternoon to make up a full Court of

Appeal to hear further appeal arguments.  The Home Office refused to

defer the first applicant's removal, scheduled the next day, to enable

him to go before a full Court of Appeal on the Monday.  The first

applicant's solicitors again worked through the night and submitted an

application to the Duty Judge on Saturday morning at his home.  They

alleged that the Home Office's refusal to delay removal unreasonably

denied the first applicant's right to renew his application to the

Court of Appeal.  The Judge accepted the argument and issued an

injunction which was served by the solicitors at Heathrow Airport in

the afternoon, thereby preventing removal.  On 26 August 1987 the

Court of Appeal granted the first applicant leave to apply for

judicial review of the Secretary of State's decision.

25.     On 24 September 1987 Mr.  Justice McCowan dismissed the

application, but on 12 October 1987 the Court of Appeal quashed the

refusal decision.  The Secretary of State successfully appealed to the

House of Lords, which gave judgment on 16 December 1987.  The case

before the House of Lords concerned the proper interpretation of

Article 1A(2) of the 1951 Refugee Convention and the definition of a

refugee as being a person who has "a well-founded fear of being

persecuted" on various grounds.  The House of Lords held that the

requirement that an applicant's fear of persecution should be

well-founded means that there has to be demonstrated, on the basis of

objective fact, a reasonable degree of likelihood, or a real and

substantial risk, that he will be persecuted if returned to his own

country.

26.     The House of Lords was satisfied that the Secretary of State

had acted reasonably and objectively in assessing the Tamil situation

in Sri Lanka and in assessing whether there existed for the first

applicant any real risk of persecution for a reason specified in the

1951 Refugee Convention:

        Lord Keith of Kinkel:  "The terms of         of State's> decision letters make it clear that he has

        proceeded on the basis of the objective situation in

        Sri Lanka as understood by him.  The affidavit of

        Mr.  Potts, an official of the Home Office, indicates

        that the Secretary of State took into account reports

        of the refugee unit of his department compiled from

        sources such as press articles, journals and Amnesty

        International publications, and also information

        supplied to him by the Foreign Office and as a result

        of recent visits to Sri Lanka by ministers.  It is

        well known that for a considerable time Sri Lanka,

        or at least certain parts of that country, have been

        in a serious state of civil disorder, amounting at

        times to civil war.  The authorities have taken steps

        to suppress the disorders and to locate and detain those

        responsible for them.  These steps, together with the

        activities of the subversives, have naturally resulted

        in painful and distressing experiences for many persons

        innocently caught up in the troubles.  As the troubles

        have occurred principally in areas inhabited by Tamils,

        these are the people who have suffered most.  The

        Secretary of State has in his decision letters expressed

        the view that army activities aimed at discovering and

        dealing with Tamil extremists do not constitute evidence

        of persecution of Tamils as such.  This was not disputed

        by counsel for any of the applicants, nor was it seriously

        maintained that any sub-group of Tamils, such as young

        males in the north of the country, were being subjected

        to persecution for any Convention reason.  It appears

        that the Secretary of State, while taking the view that

        neither Tamils generally nor any group of Tamils were

        being subjected to such persecution, also considered

        whether any individual applicant had been so subjected

        and decided that none of them had been.  Consideration

        of what had happened in the past was material for the

        purpose of assessing the prospects for the future.

        It was argued that the Secretary of State's decision

        letters did not clearly indicate that he had applied

        the 'real and substantial risk' test, but left it open

        that he might have applied a 'more likely than not'

        test.  But there is clearly to be gathered from what

        the Secretary of State has said that in his judgment

        there existed no real risk of persecution for a

        Convention reason."

        Lord Templeman:  "In order for a 'fear' of 'persecution'

        to be 'well-founded' there must exist a danger that if

        the claimant for refugee status is returned to his

        country of origin he will meet with persecution.  The

        Convention does not enable the claimant to decide

        whether the danger of persecution exists.  The

        Convention allows that decision to be taken by the

        country in which the claimant seeks asylum.  Under

        the Act of 1971 applications for leave

        to enter the United Kingdom, including applications

        based on a claim to refugee status, are determined by the

        immigration authorities constituted by the Act.  By the

        Rules made under the Act the appropriate authority to

        determine whether a claimant is a refugee is the

        Secretary of State.  The task of the Secretary of State

        in the present proceedings was and is to determine in

        the case of each appellant whether the appellant will

        be in danger of persecution if he is sent back to Sri

        Lanka.  Danger from persecution is obviously a matter

        of degree and judgment.  The Secretary of State accepts

        that an appellant who fears persecution is entitled to

        asylum in this country unless the Secretary of State is

        satisfied that there is no real and substantial danger

        of persecution.  The Secretary of State has concluded

        that there is no real and substantial danger of

        persecution."

        Lord Goff of Chieveley: "First, I respectfully agree with

        my noble and learned friend Lord Keith, for the reasons

        given by him, that the requirement that the applicant's

        fear must be well founded means no more than that there

        has to be demonstrated a reasonable degree of likelihood

        of his persecution for a Convention reason; indeed, I

        understand the submission of counsel  for the Secretary

        of State, that there must be a real and substantial risk

        of persecution, to be consistent with that interpretation.

        Second, it is not to be forgotten that the Secretary of

        State has in any event an overriding discretion to depart

        from the immigration rules and admit an applicant for

        refugee status if he considers it just to do so.  Third,

        I am with all respect unable to agree with the view expressed

        by Sir John Donaldson MR that different tests are applicable

        under Art. 1 and Art. 33 of the Convention (see [1987] WLR

        1047 at 1051).  Article 33 (1) provides as follows:

           'No Contracting State shall expel or return ('refouler')

            a refugee in any manner whatsoever to the frontiers

            of territories where his life or freedom would

            be threatened on account of his race, religion,

            nationality, membership of a particular social

            group or political opinion.'

        Sir John Donaldson MR suggested that, even if the Secretary

        of State decides that an applicant is a refugee as defined

        in Art. 1, nevertheless he has then to decide whether

        Art. 33, which involves an objective test, prohibits

        a return of the applicant to the relevant country.  I am

        unable to accept this approach.  It is, I consider, plain,

        as indeed was reinforced in argument by counsel for the

        (United Nations High Commissioner for Refugees) with

        reference to the travaux préparatoires, that the

        non-refoulement provision in Art. 33 was intended to apply

        to all persons determined to be refugees under Art. 1

        of the Convention.  I cannot help feeling, however, that

        the consistency between Arts. 1 and 33 can be more

        easily accepted if the interpretation of well-founded fear

        in Art. 1 (A)(2) espoused by the Secretary of State is

        adopted rather than that contended for by the High Commissioner."

27.     After the judgment in the House of Lords had been handed down

on 16 December 1987 the first applicant's solicitors wrote to the Home

Office later that day indicating that they would be making further

representations and that they would be applying to the Commission

seeking an indication under Rule 36 of its Rules of Procedure.  They

also sought the Home Office's confirmation that no steps would be

taken against their client for 7 days, which confirmation was given.

Representations were also made by the British Refugee Council and the

United Kingdom Immigrants Advisory Service, even though neither body

was responsible for the case work concerned.  Representations were

also made by a Member of Parliament at the request of the Tamil Action

Committee U.K.  The Secretary of State took the view that asylum

candidates who failed to qualify for refugee status should be returned

to Sri Lanka unless there were strong compassionate circumstances in

any particular case.  In the applicant's case he did not consider that

such compassionate circumstances existed.

28.     The first applicant was returned to Sri Lanka on 10 February

1988.  He was escorted by police officers, the Sri Lankan authorities

having been forewarned.  His name was published in Sri Lankan

newspapers.  He was interviewed briefly on arrival by Sri Lankan

immigration authorities at the airport.  A member of the British High

Commission was also present at the airport on arrival.  The removal

expenses were paid by the Home Office and the first applicant had

funds in excess of £100.

29.     After the first applicant's return to Sri Lanka an appeal was

lodged in the United Kingdom by his solicitors on his behalf against

the refusal of asylum.  They went to Colombo to interview and take

statements from him.  He confirmed that thanks to the publicity

surrounding his case and the presence of the member of the British

High Commission he was given little trouble at the airport.  He stated

that he was questioned for about three hours by the Sri Lankan police

as to whether he had connections with Tamil separatist groups like the

People's Liberation Organisation of Tamil Eelam (PLOTE) and the LTTE,

which he denied.  The police noted his address and took his

fingerprints.

30.     The first applicant stated that he returned to his native

village to avoid the Sri Lankan authorities and denunciation in

Colombo by the PLOTE with whom the applicant had been associated, in

fact, but who were now cooperating with the Indian Peace Keeping

Forces (IPKF) in identifying their former members and alleged LTTE

members.

31.     He also said that two weeks after his return he was denounced

to the IPKF and summoned to the local Chief Officer's Office.  He was

accused of connections with the LTTE and became frightened.  However he

was allowed to return home after questioning.  The first applicant

found the security situation arbitrary and he was afraid to leave his

home.  On a visit to Jaffna in April 1988 he was rounded up with other

Tamils and kept 10 hours by the IPKF.  They were paraded in front of

masked men who identified certain people.  The first applicant was

afraid they would make an error, but he was not detained.  People so

detained have been beaten and tortured and on release have

"disappeared".  Certain other Tamil groups were cooperating with the

IPKF, some for vengeful reasons.  According to the first applicant,

the IPKF were unpopular, although many Tamils felt marginally safer

with them than with the prospect of the Sri Lankan army returning.

32.     The first applicant recounted other incidents which lead him

to fear IPKF ill-treatment because of his earlier involvement with the

PLOTE and the IPKF's arbitrary manner of dealing with Tamils.  When he

went to Colombo to see his solicitors he had to go through about 13

frightening IPKF checkpoints and three other Sri Lankan checkpoints,

doubling the length of the normal 8 hours journey.

33.     He submitted evidence to the Commission from, inter alia, an

expert in Sri Lankan affairs, Professor J.G. Manor, who described the

situation in Sri Lanka in August 1987 as unstable despite the peace

Accord signed between Sri Lanka and India in late July 1987.  In

December 1987 a special representative of the World Council of

Churches, Mr.  G. Jackson, had found after visiting Sri Lanka for a

month that the Tamil areas remained inaccessible, subject to guerilla

attack, with a shortage of food, accommodation, transport and medical

care.  He had however noticed a slow easing of conditions in the north

of the island since the beginning of November 1987.  Amnesty

International (17 December 1987) and the United Nations High

Commissioner for Refugees (17 December 1987) recommended that Tamil

asylum seekers in the United Kingdom should not be removed back to Sri

Lanka because of continued instability and fighting in northern and

eastern Sri Lanka between Tamil militants and the IPKF.

34.     This evidence and all other relevant material was put before

the adjudicator, the first instance of immigration appeal in the

United Kingdom.  On 13 March 1989 he found in the first applicant's

favour and the latter was subsequently allowed to return to the United

Kingdom on 4 October 1989 (paras. 101-105 below).  He has been granted

exceptional leave to remain for 12 months.

        b)  The second applicant

35.     The second applicant comes from Jaffna in the north of Sri

Lanka, an area which had been controlled by the LTTE when he was

living there.  He says that in 1985 the Sri Lankan army staged a reign

of terror.  People could not go out in the street.  Young men were

arrested without reason; some were tortured or "disappeared" or were

shot on sight.  Everyone was suspected of being a Tamil separatist and

lived in fear.  When the army conducted searches the second applicant

and his family hid in trenches.  His house was searched regularly until

1985.  It was destroyed in 1986.  The family had to go for days without

food and starved because it was dangerous to go out to fetch it.  The

army's daily bombing of the Tamil area was indiscriminate, without

concern for human life.  It was the bombing and damage to his home and

business on 24 April 1987 which made him decide to leave.  He claims

to have been questioned by the police about the LTTE, although he has

never belonged to them.

36.     The second applicant left Jaffna having lost all his

possessions apart from 150,000 rupees.  He went to Colombo where he

was arrested by the police on 2 May 1987 at his uncle's home.  He

states that he was held for 20 hours and tortured, resulting in injury

and scarring to his right leg.  He claims that he was deliberately

injured with barbed wire and that he was released in a dazed and dying

state.

37.     An agent, instructed by the second applicant's father,

arranged for his flight to an unknown destination.  On 6 June 1987 he

travelled by a scheduled service of Indian Airways from Colombo to

Madras on his own Sri Lankan passport issued in Colombo in December

1986.  On 10 June 1987 he then travelled with a Malaysian passport via

Bombay to London.  There he sought entry as a visitor for two days in

transit for Montreal, Canada.  The second applicant was travelling on

a Malaysian passport in the name of Srirengan Rengasamy.  As he later

admitted, he was not the rightful holder of the document, his

photograph having been substituted for the original.

38.     He stated that his own Sri Lankan passport had been obtained

through normal channels, but it had been retained by his travel agent

in Madras.  The Malaysian passport had been obtained from the same

agent in Madras at a cost of 100,000 rupees (which had been paid for

before leaving Colombo) and which included the cost of the airline

ticket.

39.     The second applicant was refused leave to enter by the United

Kingdom immigration authorities on 12 June 1987 under paragraph 3 of

the Statement of Changes in Immigration Rules, which requires the

production of a valid identity/nationality document.  Arrangements

were made for his removal back to Sri Lanka on a 22.00 h flight.

However, before the flight he revealed his Sri Lankan nationality and

requested asylum.  His removal was, therefore, postponed.

40.     On 17 June 1987 he was interviewed about his asylum

application in the Tamil language with the assistance of an

interpreter.  During the three hour interview, the second applicant

explained his fear of persecution if returned to Sri Lanka as outlined

above.

41.     In accordance with paragraph 73 of the aforementioned

Immigration Rules, the matter was referred to the Refugee Section of

the Home Office.  They concluded that the second applicant had not

demonstrated that he had a well-founded fear of persecution for the

purposes of the 1951 Refugee Convention.  Details of the case were

referred to Ministers in the Home Office, who reached a similar

conclusion.  Accordingly, on 20 August 1987 a refusal notice was

served on the second applicant, who had remained in detention pending

consideration of his case.

42.     The Secretary of State's refusal of the second applicant's

asylum request was in the following terms:

        "You have applied for asylum in the United Kingdom on the

        grounds that you hold a well-founded fear of persecution

        in Sri Lanka for reason of race, religion, nationality,

        membership of a social group or political opinion.  The

        Secretary of State has considered your application.  You

        said it was unsafe for you to return to Sri Lanka because

        of the Government operation around Jaffna.  You stated that

        your house and business premises had been destroyed by

        Government shelling.  You also said that you had been

        detained for 20 hours in May 1987 and had been assaulted.

        But it appears that the destruction of your house and

        business resulted from a random shelling arising from

        civil disorder and it appears that your arrest and brief

        detention were part of the army's general activities

        directed at discovering and dealing with Tamil extremists.

        The Secretary of State has considered the individual

        circumstances of your case and in addition the situation

        in Sri Lanka and has concluded that you have not

        established a well-founded fear of persecution in Sri Lanka.

        Accordingly your application for asylum is refused.  Since

        you do not otherwise qualify to enter the United Kingdom,

        the Immigration Service has been instructed to arrange

        for your removal to Sri Lanka to which country you are

        returnable under para. 10 of schedule 2 Immigration Act 1971."

43.     Arrangements for his removal to Sri Lanka were made for

22 August 1987.

44.     The subsequent events in this case up to the second

applicant's removal to Sri Lanka were identical to those of the first

applicant (see paras. 24-27 above).

45.     The second applicant was returned to Sri Lanka on 10 February

1988.  He was escorted by police officers, the Sri Lankan authorities

having been forewarned.  His name was published in Sri Lankan

newspapers.  He was first interviewed briefly on arrival by Sri Lankan

immigration authorities at the airport.  A member of the British High

Commission was also present at the airport on arrival.  The removal

expenses were paid by the Home Office and the second applicant had

funds in excess of £100.  He was then interviewed by the Sri Lankan

police for several hours and fingerprinted.  He laid low in Colombo at

his uncle's house for about a month until it was safe to travel to

Jaffna.

46.     After the second applicant's return to Sri Lanka an appeal was

lodged in the United Kingdom by his solicitors on his behalf against

the refusal of asylum.  They went to Colombo to interview and take

statements from him.  He told his solicitors that on 10 March 1988 he

was travelling to Jaffna by bicycle from his home when he was stopped

by an IPKF check.  Tamil men and boys were lined up for identification

by two masked men, one of whom picked out the applicant.  He was taken

with about 10 others to an IPKF camp in a Jaffna house where he was

beaten for about three hours.  Part of the time he was clubbed with

sand filled PVC pipes.  At the same time questions were shouted at him

about the LTTE, of which the applicant denied any knowledge.  He was

kept in a small room without bedding or sanitary facilities, squashed

up with six other detainees who were receiving similar ill-treatment.

Some of these people were treated more harshly than the applicant by

being beaten hung upside down.  The second applicant was beaten

intensely three more times over the next seven days for periods of

about half an hour.

47.     He was detained for some two and a half months until 24 May

1988, the same men questioning him.  He lost 20-30 lbs in weight, had

bad headaches and was very frightened.  The Indian soldiers constantly

told him that if he did not talk they would keep him locked up

forever.  The detainees were given rice, dahl and chapatis for food

and insufficient water.  They therefore became dehydrated and

constipated.  They were filmed and apparently later shown on

television as surrendered LTTE men.  The second applicant was rescued

by his family by bribing the local IPKF commander with gold, even

though his family could not really afford to do so.  He still has

nightmares about this period.

48.     On release he was told to report daily.  Given his experience,

he fled to Colombo.  On the way there he had to pass 15 IPKF

checkpoints and several Sri Lankan army checkpoints.  Everyone was

searched at the checkpoints but no one was arrested.

49.     The second applicant stated that life at that time in Colombo

was very tense for Tamils.  A few weeks before the interview with his

solicitors 25 boys were arrested for not having good enough reason for

being in the south.  It was nerve-racking for the second applicant

having already been beaten and tortured by the Sri Lankan army in

Colombo.  There was a constant danger of arbitrary arrest and

detention, particularly with denunciation by informers.  However the

second applicant felt safer in Colombo than in Jaffna.  To justify his

stay in Colombo he registered as a student.

50.     The second applicant's appeal in the United Kingdom was

successful.  An adjudicator upheld his claims on 13 March 1989.  The

second applicant was subsequently allowed to return to the United

Kingdom on 4 October 1989, where he was granted exceptional leave to

remain for 12 months (paras. 101-105 below).

        c)  The third applicant

51.     The third applicant comes from Point Pedro, Sri Lanka, where

his family are living.  His father is a fisherman.  He is the eldest

son.  He was studying for his 'O' level examinations at Khartly

College in Point Pedro until the end of 1985 and he then stayed at

home.

52.     In April 1984 the third applicant witnessed the killing of his

brother by navy personnel.  The brother was a fisherman and was

fishing in a boat with a friend within the one mile limit off the

coast at Point Pedro.  Navy personnel came by in a boat and shot and

killed both of them without warning or reason.

53.     In March 1984 security forces came to the area and rounded up

male Tamils, including the third applicant.  They were detained for

one day and assaulted with rifle butts and sticks.  Their names and

family details were noted.  Some of them were taken away by the army.

54.     In June 1984 the security forces came to Point Pedro and again

rounded up the male Tamils, including the third applicant.  About 300

people were rounded up.  Part of the time they were detained outside,

part of the time in a building.  They were assaulted.  The security

forces took away 15 people and shot and killed them the same day.  The

bodies were burned.  Other people were sent to an army camp.

55.     In September 1984 the situation repeated itself with male

Tamils being rounded up and detained for one day.  The third applicant

was again detained.  About 20 people were taken away, shot and killed.

The bodies were burned on the spot.

56.     After these incidents, whenever they saw the security forces

approaching, the men would run away and go into hiding.

57.     Point Pedro has been subject regularly to air bombardment and

shelling from the army camp.  The third applicant's family house was

damaged during air bombardment in October 1985 and the family had to

move to another house in the area.

58.     The third applicant states that he was in the LTTE from late

1984 until he left Sri Lanka.  He did some military training and was a

sentry for the camp.  He also carried communications for them.  He

claims, however, never to have been involved in any violence or

terrorist activities.

59.     His father decided that the third applicant should leave Sri

Lanka as he feared for his son's safety as a young, male Tamil.  His

father made arrangements through a Tamil agent in Point Pedro for his

son to leave the country.  The third applicant travelled to Colombo on

28 November 1986 and stayed with the agent until 11 December 1986.

The agent obtained a passport for him.  The third applicant travelled

to the United Kingdom via India, Nepal and Dhaka.

60.     On the way to Colombo airport, the minibus in which he was

travelling was stopped at an army checkpoint just before the airport.

The third applicant and the other passengers were accused of going for

training with militants in India - they were in possession of tickets

for India.  They were taken to an office and held for 3 hours and

questioned.  They were also fingerprinted.

61.     The third applicant was one of a group of some 64 Tamils who

arrived at Heathrow Airport, London, on 13 February 1987 and claimed

asylum.  He originally stated that he was in transit to Norway.  The

64 Tamils were all detained pending the proceedings.

62.     The third applicant was interviewed in the Tamil language with

the aid of an interpreter.  As to conditions in Sri Lanka he described

the events outlined above.  At that stage he averred that he was not

involved with the LTTE.  (He did not make this claim to the British

authorities until September 1987, because, he states, he feared it

would have an adverse effect on his asylum application.)

63.     Pursuant to paragraph 73 of the Statement of Changes in

Immigration Rules, the matter was referred to the Refugee Section of

the Home Office.  They concluded that the third applicant had not

established a well-founded fear of persecution for the purposes of the

1951 Refugee Convention and his application was refused on 16 February

1987.  However, an application for leave to apply for judicial review

was made to the Divisional Court and granted on 24 February.  On 2

March the Home Office informed the third applicant's solicitors that a

fresh decision would be taken on the asylum claim.

64.     Representations from the United Kingdom Immigrants' Advisory

Service were received and the third applicant was re-interviewed about

his asylum claim on 14 April 1987.

65.     The application for asylum was reconsidered in the Refugee

Section but they again concluded that the third applicant had not

demonstrated that he had a well-founded fear of persecution for the

purposes of the 1951 Refugee Convention.  Details of the case were

referred to Ministers, who reached a similar conclusion.  Accordingly,

on 20 August 1987 a refusal letter was served on the third applicant,

which read as follows:

        "You have applied for asylum in the United Kingdom on the

        grounds that you hold a well-founded fear of persecution

        in Sri Lanka for reason of race, religion, nationality,

        membership of a social group or political opinion.  The

        Secretary of State has further considered your application.

        You said it was too dangerous to stay in Sri Lanka.  People

        were being arrested indiscriminately and killed by the

        security forces.  You also said that you had been detained

        on three occasions between 1984 and 1985 and that you had

        been detained for three days after being arrested with your

        travelling companions on the way to Colombo.  Lastly you

        said your brother, Kamarajah, had been shot by the navy in

        1984.  But it is noted that the experiences to which you

        refer were the result of civil disorder in Sri Lanka rather

        than persecution within the terms of the United Nations

        Convention Relating to the Status of Refugees and that

        your arrests were part of the army's general activities

        directed at discovering and dealing with Tamil extremists

        and that on each occasion you were released without charge

        after a short period.  It is further noted that your

        brother was shot dead by the navy when he failed to obey

        a lawful order.  The Secretary of State has considered

        the individual circumstances of your case and in addition

        the situation in Sri Lanka and has concluded that you

        have not established a well-founded fear of persecution

        in Sri Lanka.  Accordingly your application for asylum

        is refused.  Since you do not otherwise qualify to enter

        the United Kingdom, the Immigration Service has been

        instructed to arrange for your removal to Sri Lanka to

        which country you are returnable under para. 10 of

        schedule 2 Immigration Act 1971."

66.     Arrangements for his removal to Sri Lanka were made for

22 August 1987.

67.     The subsequent events in this case up to the third applicant's

removal to Sri Lanka were identical to those of the first applicant

(see paras. 24-27 above).

68.     The third applicant was removed to Sri Lanka on 12 February

1988.  He was escorted by police officers, the Sri Lankan authorities

having been forewarned.  His name was published in Sri Lankan

newspapers.  A member of the British High Commission was present at

the airport on arrival.  The removal expenses were paid by the Home

Office and the third applicant had funds in excess of £100.

69.     On returning to Sri Lanka the third applicant was apparently

detained by the IPKF from 2 April until 3 October 1988 and from

29 November until 30 December 1988.  He then spent some time out of

that country.  Although his whereabouts were undisclosed for some

time, he kept in contact with his solicitors, who lodged an appeal in

the United Kingdom on his behalf against the refusal of asylum.  This

appeal was successful.  An adjudicator upheld his claims on 13 March

1989.  The third applicant was subsequently allowed to return to the

United Kingdom on 4 October 1989, where he was granted exceptional

leave to remain for 12 months (paras. 101-105 below).

70.     On 9 January 1990 the third applicant's representatives

submitted a statement he had made to them about his treatment by the

IPKF in Sri Lanka on his return there as of 13 February 1988:  He

alleges that on his return he was held by the Sri Lankan Police

(Criminal Investigation Division) for a day and treated like a

criminal whilst being interrogated about his reasons for having gone

to the United Kingdom.  He then stayed with his parents for a few

weeks.  Whilst passing through a check point he was identified by a

masked man as having being involved with the LTTE and detained by the

IPKF.  He was interrogated about the LTTE and tortured every 4 or 5

days.  He was stripped and beaten with iron bars and sand-filled PVC

pipes.  Sometimes he was tied up side down and a fire, with chillies,

lit underneath his head lasting 10 or 15 minutes until he passed out.

On 4 or 5 occasions he was subjected to electric shock treatment to

his genitals.  He admitted his previous involvement with the LTTE.  He

was released on 3 October 1988 after his parents managed to bribe the

Commanding officer.  He then spent two weeks in hospital as he could

hardly walk.  However, he was rearrested on 29 November 1988 by the

IPKF, accompanied by members of the Eelam People's Revolutionary

Liberation Front (EPRLF).  He received the same ill-treatment as

before and was released on 30 December 1988 following a further bribe

from his parents.  He went into hiding for two months, tried going to

Canada but was cheated by an agent who left him in Malaysia.  He then

had to return to Sri Lanka in April 1989 and hid in Colombo.  There he

was once beaten up by navy personnel.  Since his return to the United

Kingdom he states that the IPKF and EPRLF are still harassing his

family.

        d)  The fourth applicant

71.     The fourth applicant comes from Achelu but received his

schooling 15 miles away in Point Pedro until December 1986 when he

took 'O' level examinations.  He claims to have been detained 5 times

by the State armed forces: in 1983 for one month, in 1984 for one day,

in 1985 for one week, in 1986 for half a day and in 1987 for one and a

half days.

72.     In May 1984 the army set fire to his school, Hardly College at

Point Pedro.  Half of the school was destroyed and the army occupied

the other half.  The school was moved to a temporary shed.  The fourth

applicant was arrested the day after the raid and, accused of burning

down the school, was taken to the local army camp where he was held

for 6/7 hours.  The principal of the school protested and secured his

release.

73.     In May 1986, while the fourth applicant was on his way to

school by bus, an army helicopter bombed a bridge which the bus was to

cross and everyone was ordered off the bus.  16 people were taken to a

nearby temple and held for 4 hours.  They were then taken to the

Thonhondamanai army camp for further questioning.  The fourth

applicant was at the camp from 6 h to 13 h and was released alone.  He

was not ill-treated but threatened with ill-treatment.  His elder

brother in the meantime fled to France (January 1986) where he was

granted political asylum.

74.     After August 1986 there was intensive shelling by the army and

the fourth applicant's family dug trenches round their house in which

they spent long periods.

75.     On 1 January 1987 the family home in Achelu was destroyed by

army bombing from the air and advancing armed forces on the ground.

The fourth applicant and his father ran in the direction of Urelu (3

miles from Achelu) during the bombing, his mother and sister ran in

the opposite direction.  He has not seen either his mother or sister

since.  His father returned to the family house to find it destroyed

and on 15 January 1987 took his son to Colombo by bus.  They were

arrested at Elephant Pass, 30 miles from Jaffna, and held at the army

camp there for one and a half days.

76.     They arrived in Colombo on 18 January 1987, where his father

arranged with an agent for his son to leave Sri Lanka.  The fourth

applicant had felt insecure in Colombo as he had Tamil identity cards

and the authorities knew he was not a local.  He flew to Kuala Lumpur

on 2 February 1987.  He then flew to London via Malaysia and Dhaka,

arriving at Heathrow airport on 13 February 1987 where he requested

asylum.  Several pages of his passport had been removed.  He was one

of the group of 64 Tamil asylum seekers (cf. para. 61 above).

77.     The fourth applicant was detained pending the proceedings.  He

was interviewed twice in the Tamil language with the assistance of an

interpreter.  During these interviews he described the events outlined

above.  He also averred that he had not been politically involved in

Sri Lanka.

78.     In accordance with paragraph 73 of the Statement of Changes in

Immigration Rules, the matter was referred to the Refugee Section of the

Home Office.  They concluded that the fourth applicant had not

established a well-founded fear of persecution for the purposes of the

1951 Refugee Convention and his application was refused on 17 February

1987.  However, application for leave to apply for judicial review was

made to the Divisional Court and granted on 24 February.  On 2 March

the Home Office informed the fourth applicant's solicitors that a

fresh decision would be taken on the asylum claim.

79.     Representations from the United Kingdom Immigrants' Advisory

Service were received and the fourth applicant was re-interviewed

about his asylum claim on 23 April 1987.  The application for asylum

was reconsidered in the Refugee Section, but they again concluded that

he had not demonstrated that he had a well-founded fear of persecution

for the purposes of the 1951 Refugee Convention.  Details of the case

were referred to Ministers, who reached a similar conclusion.  The

fourth applicant was informed of this decision on 1 September 1987 in

a letter which read as follows:

        "You applied for asylum in the United Kingdom on the

        grounds that you have a well-founded fear of persecution

        in Sri Lanka for reason of race, religion, nationality,

        membership of a particular social group or political

        opinion.  The Secretary of State has further considered

        your application.

        Sri Lanka has in recent years experienced considerable

        disorder which the Sri Lanka authorities have had to

        take measures to control.  As a result of this disorder

        individuals of all ethnic groups have suffered.  However

        the Secretary of State, having considered all the

        available evidence, does not consider that Tamils in

        Sri Lanka are a persecuted group who have a claim to

        refugee status under the 1951 UN Convention Relating

        to the Status of Refugees simply by virtue of their

        ethnic or national origins.

        Nevertheless the Secretary of State does consider

        individual applications for asylum made by Tamils from

        Sri Lanka to see whether they fall within the terms of

        the 1951 UN Convention.  This depends on the

        circumstances in the individual case.

        In support of your application you said that your life

        was in danger in Sri Lanka and that your house had been

        damaged by army shelling.  You also said that you had

        once been held up by the army with the others on your

        school bus for 6 hours, and also that the bus you were

        travelling on from Jaffna to Colombo had been held up

        by the army for 24 to 36 hours.  At your interview on

        13 April 1987 you added that you had been picked up by

        the army and held for an hour in 1984.

        However the Secretary of State has also taken account

        of the fact that the damage to your house had been

        caused by indiscriminate shellings, that neither you

        nor your travelling companions had been harmed in any

        way on the two occasions you were held up and that you

        had not been harmed while detained for an hour in 1984.

        Moreover the United Kingdom Immigrants' Advisory Service

        have stated on your behalf that you did not stay in Colombo

        after reaching there on 18 January 1987 because you felt

        insecure on account of holding a Tamil identity card and

        because the authorities knew that you were not a local.

        You stated at a further interview in April 1987 that you

        thought your father, who had accompanied you to Colombo

        and saw you off on the plane on 2 February, had probably

        gone back to take up his job as a teacher in a government

        run school and had re-established contact with your mother

        and sister.

        Having taken account of all the matters you have put

        forward in support of your application and of the other

        matters set out in this letter the Secretary of State

        is not satisfied that you have a well-founded fear of

        persecution in Sri Lanka within the terms of the 1951

        UN Convention Relating to the Status of Refugees.

        Since you do not otherwise qualify for leave to enter the

        United Kingdom, the Immigration Service have been instructed

        to arrange your removal to Sri Lanka to which country you are

        returnable under para. 10 of schedule 2 to the Immigration

        Act 1971."

80.     Arrangements for the fourth applicant's removal were made for

4 September 1987.

81.     The subsequent events in this case up to the fourth

applicant's removal to Sri Lanka were identical to those of the first

applicant (see paras. 24-27 above).

82.     The fourth applicant was removed to Sri Lanka on 12 February

1988.  He was escorted by police officers, the Sri Lankan authorities

having been forewarned.  His name was published in Sri Lankan

newspapers.  He was first interviewed briefly on arrival by the Sri

Lankan immigration authorities at the airport.  A member of the

British High Commission was also present at the airport on arrival.

The removal expenses were paid by the Home Office and the fourth

applicant had funds in excess of £100.  He was then interviewed

aggressively by the Sri Lankan police for four hours about his

association with Tamil groups and the travel agencies who had been

involved in his escape to the United Kingdom.  His fingerprints were

taken.

83.     After the fourth applicant's return to Sri Lanka an appeal was

lodged in the United Kingdom by his solicitors on his behalf against

the refusal of asylum.  They went to Colombo to interview and take

statements from him.  He told his solicitors that on his return he

stayed with a charitable family friend in Colombo because no trace had

been found of his family.  He did not go out unless escorted by a

Singhalese speaker who could deal with any trouble from the police.  He

had many difficulties because he did not have an identity card. (It

had been lost by the Home Office immigration service.)  He could not

try to find his family because he could not get through the many

checkpoints.  He was thereby trapped outside his home area.

84.     The fourth applicant stated that he was arrested without any

identity card by the police on or around 10 March 1988.  He was

detained for four hours and questioned about his activities in

Colombo.  The family friend persuaded the police to release him.  The

atmosphere in Colombo for Tamils was very tense for they were subject

to attack by Sinhalese.  In May 1988 the fourth applicant was again

arrested by the police at the friend's shop.  He was detained

overnight and beaten with belts and kicked for about half an hour.  He

was accused of hiding Tamil terrorists from the LTTE group.  The

family friend managed to bribe someone to obtain the applicant's

release.  The beating aggravated an ulcer condition that began when

the applicant was in the United Kingdom.  As a result he had to spend

a week in hospital and caused much expense to his friend who paid for

all necessary treatment and medicines.

85.     The fourth applicant was further distressed to see a

television report in which two of his relatives were shown to have

been killed in crossfire between the LTTE and the IPKF several miles

from his home village.

86.     The fourth applicant's appeal in the United Kingdom was

successful.  An adjudicator upheld his claims on 13 March 1989.  The

fourth applicant was subsequently allowed to return to the United

Kingdom on 4 October 1989, where he was granted exceptional leave to

remain for 12 months (paras. 101-105 below).

        e)  The fifth applicant

87.     The fifth applicant is from Manor Town which is in the

north-west of Sri Lanka about 90 miles from Jaffna.  This town was

constantly bombarded by the State's military forces towards the end of

1986.  Many Tamils were hiding in the jungle.  His family home and shop

were burnt down in 1985 by soldiers.  The applicant believed that two

of his brothers had been shot dead by the army in 1986.  He had

already witnessed the army killing two people in 1985.  At that time

the fifth applicant was hiding in the jungle otherwise he thought that

he would have been killed too.  He was shot at by soldiers passing

through his town.  There have been problems in the applicant's area

since 1983 with the town's Sinhalese majority.  Many people have been

killed and buildings destroyed.  There had been rumours of massacres

elsewhere.

88.     There was an army camp 5 miles from the fifth applicant's

home.  Young men were particularly at risk.  If the military saw them

they were liable to summary arrest, torture or even murder.  People

ran away when they saw soldiers coming, although by the time the

applicant left Sri Lanka they were mostly confined to their camps.

Nevertheless soldiers would search for people in convoys.  The fifth

applicant's area was controlled by Tamil separatists.  His house was

searched weekly by the army.  He was not a member of any political

group or terrorist organisation.

89.     The fifth applicant paid an agent 50,000 Sri Lankan rupees to

get him out of Sri Lanka, which he left from Colombo Airport.  He

travelled alone, spending over a month in Bangkok.  He arrived at

Heathrow Airport on 19 March 1987 and claimed asylum, although he had

originally planned to go to Canada.  Several pages had been removed

from his passport.  On 20 March he was interviewed in the Tamil

language with the assistance of an interpreter.  During this interview

he described the events outlined above.

90.     In accordance with paragraph 73 of the Statement of Changes in

Immigration Rules, the fifth applicant's request for asylum was

referred to the Refugee Section of the Home Office.  They concluded

that the applicant had not demonstrated a well-founded fear of

persecution for the purposes of the 1951 Refugee Convention.  Details

of the case were referred to Ministers in the Home Office, who reached

a similar conclusion.  Accordingly on 1 September 1987 a refusal

notice was served on the fifth applicant, who had remained in

detention pending consideration of his case.

91.     The Secretary of State's refusal of the fifth applicant's

asylum request was in the following terms:

        "You have applied for asylum in the United Kingdom on the

        grounds that you have a well-founded fear of persecution

        in Sri Lanka for reason of race, religion, nationality,

        membership of a particular group or political opinion.

        Sri Lanka has in recent years experienced considerable

        disorder which the Sri Lanka authorities have had to

        take measures to control.  As a result of this disorder

        individuals of all ethnic groups have suffered.  However

        the Secretary of State, having considered all the

        available evidence, does not consider that Tamils in

        Sri Lanka are a persecuted group who have a claim to

        refugee status under the 1951 UN Convention Relating

        to the Status of Refugees simply by virtue of their

        ethnic or national origins.

        Nevertheless the Secretary of State does consider

        individual applications for asylum made by Tamils from

        Sri Lanka to see whether they fall within the terms of

        the 1951 UN Convention.  This depends on the

        circumstances in the individual case.

        In support of your application you said that it was

        impossible to live in Sri Lanka because Tamils are being

        persecuted.  There was an army camp 5 miles from your

        village and villagers were always being chased away by

        troops.  You said that your parents' home was burnt down

        in 1985 together with the rest of your village and that

        you had been questioned and threatened by troops in

        February 1985 and your shop had been burnt down.  You

        also said that two of your five brothers had been shot

        dead by troops.

        However the Secretary of State has also taken account

        of the fact that you lived safely in Sri Lanka for two

        years following the destruction of your parents' home and

        of your shop and that your parents have lived in a small

        house the other side of the forest from where they used

        to live and that you helped on your father's land.  Your

        parents, three other brothers and four sisters, some

        married with families of their own have, on the information

        which you have provided, continued to live safely in Sri

        Lanka to the present time.

        Having taken account of all the matters you have put

        forward in support of your application and of the other

        matters set out in this letter the Secretary of State

        is not satisfied that you have a well-founded fear of

        persecution in Sri Lanka within the terms of the 1951

        UN Convention Relating to the Status of Refugees.

        As you do not otherwise qualify for entry under the

        Immigration Rules I therefore refuse you leave to enter."

92.     Arrangements for the fifth applicant's removal to Sri Lanka

were made for 4 September 1987.

93.     The subsequent events in this case up to the fifth applicant's

removal to Sri Lanka were identical to those of the first applicant

(see paras. 24-27 above).

94.     The fifth applicant was returned to Sri Lanka on 12 February

1988.  He was escorted by police officers, the Sri Lankan authorities

having been forewarned.  His name was published in Sri Lankan

newspapers.  A member of the British High Commission was present at

the airport on arrival.  The removal expenses were paid by the Home

Office and the fifth applicant had funds in excess of £100.

95.     On returning to Sri Lanka the fifth applicant had difficulties

because, like the fourth applicant, he had no identity card.  (It had

been temporarily lost by the Home Office immigration service and was

returned to him by post later.)  He obtained a forged card and managed

to escape arrest during numerous police searches.  His brother joined

the LTTE and the fifth applicant had money extorted out of him for

this Tamil separatist cause.  He was suspected by the Sri Lankan and

Indian authorities and is still being sought by them.  He apparently

managed to leave Sri Lanka again.  Although his whereabouts were

undisclosed for some time, he kept in contact with his solicitors, who

lodged an appeal in the United Kingdom on his behalf against the

refusal of asylum.  This appeal was successful.  An adjudicator upheld

his claims on 13 March 1989.  The fifth applicant was subsequently

allowed to return to the United Kingdom on 28 August 1989, where he

was granted exceptional leave to remain for 12 months (paras. 101-105

below).

        f)  The situation in Sri Lanka

96.     Sri Lanka has a population of 16.1 million, of which 74 % are

Sinhalese and 18 % are Tamil Hindus.  The Tamils are concentrated in

particular areas, and in the northern peninsula of Jaffna account for

over 90 % of the population.  The history of the ethnic conflict

between Tamils and Sinhalese goes back for generations, with

Sinhalese, anti-Tamil chauvinism being a major factor in Sri Lankan

politics since 1948.  This history was outlined by Professor James

Manor, a specialist in South Asia politics whose evidence was fully

accepted by an independent adjudicator (see below paras. 101-102).

One result of the anti-Tamil sentiment in Sri Lanka has been a series

of pogroms against Tamil communities, particularly since 1956, and

which increased dramatically in 1983, triggered off by the killing of

13 Sri Lankan soldiers by a Tamil liberation group.  A state of

emergency was proclaimed which is still in force.  This resulted in

considerable governmental violance against the Tamil community,

including organised massacres tolerated, if not approved of, by the

Government.

97.     An Accord was signed between Sri Lanka and India on 29 July

1987 which must be judged in the light of this ethnic violence.

Professor Manor foresaw in August 1987 that such an Accord had little

hope of lasting, given the country's fundamental ethnic disunity.

Following the Accord the Indian Army entered Tamil areas with a view

to protecting the Tamil community and the Sinhalese forces were to be

returned to barracks.  However, quite quickly the Indian Peace Keeping

Forces (IPKF) became involved in fighting Tamil extremists who

rejected the Accord.  Incidents of arrest, arbitrary detention,

torture and destruction were reported, especially in October and

November 1987, with indiscrimate shelling and shooting in villages and

towns in the north.  There was a siege of Jaffna town when it was

estimated that some 2000-5000 civilians were killed by the IPKF with a

high level of atrocities committed during the assault on the town and

thereafter.  Identity cards were indispensable for Tamils at this

time, not only a Sri Lankan identity card, but also a card issued by

the IPKF for anyone in the north, in order to avoid the risk of

summary detention.

98.     When the applicants were returned to Sri Lanka in February

1988 reports of civil disturbance and confusion there were still

rife.  The respondent Government analysed the situation as follows:

they accepted that there was widespread disruption and violence,

particularly in the north and east of Sri Lanka, although large parts

of the country remained quiet.  The disturbances seem to have eased

off in December 1987.  They considered that the Sri Lankan Government

were firmly committed to the restoration of law and order, civil

rights for all communities and the democratic election of regional

representatives.  They knew of the July 1987 Accord with the Indian

Government and the voluntary repatriation of a large number of Sri

Lankan Tamils, mostly having taken refuge in India, under a scheme

organised by the United Nations High Commissioner for Refugees in

response to provisions in the Accord to this effect.  Under this

scheme over 23,000 Tamils returned between late December 1987 and

August 1988 (some 5000 between April and August 1988).  Other Western

European countries were also beginning to send Tamils back to Sri

Lanka by that time (e.g. the Netherlands and France).  Although there

could be no guarantee that individual Sri Lankan citizens would not be

caught up in the violence caused by fighting between Tamil terrorists

and the IPKF, nevertheless, in the respondent Government's view the

risks faced were common to all Sri Lankans and did not justify the

applicants' claims to be allowed to enter and remain in the United

Kingdom.

99.     The applicants' analysis of events differed considerably in

that they considered that the civil disruption created a risk of

continued persecution for them.  Amnesty International had reported

disappearances and torture.  Amnesty, the British Refugee Council and

the United Nations High Commissioner for Refugees had in December 1987

each urged the respondent Government not to send any Tamils back to

Sri Lanka in view of the instability at that time, the uncertain

effect of the July Accord and reports of human rights violations by

both the Sri Lankan security forces and the IPKF.

100.    A report by the Asia Committee of the British Refugee Council

dated 15 December 1987 noted that there was widespread devastation of

property as well as food and health problems, although since the

beginning of November 1987 the situation had slightly eased.  However,

the view was maintained that the whole of the majority Tamil areas was

subject to guerilla attack, and counter-attack by the IPKF, and that

little resembling normal life was possible.

        g)  The applicants' subsequent appeals and

            their return to the United Kingdom

101.    The applicants' solicitors lodged an appeal against the

asylum refusals to an adjudicator in the United Kingdom, pursuant to

section 13 of the Immigration Act 1971.  They filed voluminous

documentary material concerning the past and present situation for

Tamils in Sri Lanka.  None of this material was challenged by the

Secretary of State's representatives and no other material upon which

the latter based his decisions to refuse asylum was put before the

adjudicator.  The adjudicator, in his determination of 13 March 1989,

found a consistency between the applicants' claims and the evidence of

non-governmental organisations and South Asia specialists.  This showed

that generally the victims of individual ill-treatment at the hands of

Sri Lankan forces had been young male Tamils and that excessive force

had been used against non-combatants in the North by both Sri Lankan

armed forces and the IPKF afterwards.  He accepted the applicants'

claim that they had left Sri Lanka for fear that as young Tamils they

were at risk of, inter alia, "interrogation, detention and even

physical harm".  He largely believed the accounts given by the

applicants of their personal situations:

     -  as regards the first applicant, the raid on the family

business, the death of his cousin, his arrests and detention in 1986

and later, on his return to Sri Lanka, his interrogation by the police

(but not his claim to membership of PLOTE);

     -  as regards the second applicant, his family situation, the

alleged detention and assault, destruction of his home and, on his

return to Sri Lanka, his arrest and ill-treatment in Jaffna;

     -  as regards the third applicant, his arrests, interrogations

and death of his brother (but not his claim to membership of the

LTTE);

     -  as regards the fourth applicant, the destruction of his family

home by shelling, the incidents he witnessed and, on his return to Sri

Lanka, his detention several times due to his lack of an identity

card;

     -  as regards the fifth applicant, the arson of his home,

the shooting dead of two of his brothers and, after his return to Sri

Lank, the arrest of his family and relatives.

102.    The adjudicator concluded that the applicants had had a

well-founded fear of persecution and he held as follows:

     -  that they were all entitled to asylum at the time of the

Secretary of State's decision;

     -  that the circumstances since that time have not materially

changed;

     -  that the Secretary of State's decisions in respect of all the

applicants were not in accordance with the law;

     -  that the applicants' appeals were accordingly allowed and

     -  that they should be returned to the United Kingdom with the

minimum of delay, the fourth and fifth applicants being entitled to

indefinite leave to remain in the United Kingdom.

103.    The Secretary of State's appeal to the Immigration Appeal

Tribunal was rejected on 19 April 1989 as being out of time, the 14

day time limit for lodging appeals having been missed due to an

administrative error (the envelope containing the notice of appeal had

been wrongly addressed).  On 12 May 1989 the Secretary of State

applied for judicial review of the Tribunal and adjudicator's

decisions.  In particular the Secretary of State challenged the

lawfulness or reasonableness of adjudicator's directions that the

applicants be returned to the United Kingdom.  Leave for judicial

review was granted by Mr.  Justice McCowan on 17 May 1989 and the case

was heard on 11 July 1989 by Lord Justice Lloyd and Mr.  Justice Auld.

The Court upheld the decision of the Immigration Appeal Tribunal.  On

31 July 1989 the Secretary of State applied for a stay of execution

against the return of the five applicants pending a possible appeal

against the refusal of judicial review.  This application was rejected

on 31 July 1989.

104.    As a result, the Home Office wrote to the applicants'

solicitors on 1 August 1989 informing them that the High Commission in

Colombo was authorised to issue visas to the applicants for their

return to the United Kingdom where their applications for asylum would

be considered afresh.  Four of the applicants returned to the United

Kingdom on 4 October 1989.  The fifth applicant had arrived in the

United Kingdom from Paris on 28 August 1989.  The United Kingdom

Government had paid all the fares and, on arrival, they were all

granted exceptional leave to remain for 12 months.

105.    As of 11 October 1989 the Secretary of State still had an

appeal pending to challenge a finding by Mr.  Justice Auld in the High

Court that two of the applicants were entitled to raise their asylum

claim on appeal to the adjudicator notwithstanding the fact that they

were refused leave to enter as visitors before they made their

requests for asylum.

B.      Relevant domestic law and practice

        a)  Appeal rights of an asylum seeker under the

            Immigration Act 1971

106.    Special provision is made for the position of refugees and for

those seeking asylum in the United Kingdom in the Statement of Changes

in Immigration Rules HC 169 (9 February 1983) ("the Rules").  Paragraph

16 of the Rules provides as follows:

        "Where a person is a refugee full account is to be taken

        of the provisions of the Convention and Protocol relating

        to the Status of Refugees (Cmnd. 9171 and Cmnd. 3096).

        Nothing in these Rules is to be construed as requiring

        action contrary to the United Kingdom's obligations under

        these instruments."

107.    An application for asylum can be made by a person either on

arrival at a port in the United Kingdom or after entering the country.

If the application is made on arrival, it is, by virtue of section

4(1) of the Immigration Act 1971 ("the 1971 Act"), dealt with by an

immigration officer in accordance with paragraph 73 of the Rules,

which reads as follows:

        "Special considerations arise where the only country to

        which a person could be removed is one to which he is

        unwilling to go owing to well-founded fear of being

        persecuted for reasons of race, religion, nationality,

        membership of a particular social group or political

        opinion.  Any case in which it appears to the immigration

        officer as a result of a claim or information given by the

        person seeking entry at a port that he might fall within

        the terms of this provision is to be referred to the Home

        Office for decision regardless of any grounds set out in

        any provision of these Rules which may appear to justify

        refusal of leave to enter.  Leave to enter will not be

        refused if removal would be contrary to the provisions

        of the Convention and Protocol relating to the Status

        of Refugees."

108.    Article 1.A(2) of the Refugee Convention, as amended by the

1967 Protocol, reads, so far as is relevant, as follows:

        " ... the term 'refugee' shall apply to any person who:

        (2) owing to well-founded fear of being persecuted for

            reasons of race, religion, nationality, membership

            of a particular social group or political opinion,

            is outside the country of his nationality and is

            unable or, owing to such fear, is unwilling to

            avail himself of the protection of that country ..."

109.    If an application for leave to enter as a refugee is refused

at this stage (that is to say, before leave to enter the United

Kingdom is given), there is a right of appeal on the merits against

that refusal under section 13 of the 1971 Act to the appellate

authorities set up under Part II of that Act ("the appellate

authorities"), but such right may in general only be exercised from

outside the United Kingdom.  Appeals in the first instance are to an

adjudicator, who is a single judge, appointed by the Home Office.

From there appeals lie, usually with leave, to a three-person

Immigration Appeal Tribunal.  Members of the Tribunal are appointed by

the Lord Chancellor and need not have legal qualifications, although a

lawyer must preside sittings.

110.    By virtue of section 17 of the 1971 Act, where directions are

given for a person's removal from the United Kingdom on his being

refused leave to enter, he may appeal to an adjudicator against the

directions on the ground that he ought to be removed (if at all) to a

different country or territory.  It is for the person concerned to

find another country which will accept him.

111.    By virtue of section 13(1) of the 1971 Act a person who is

refused leave to enter the United Kingdom may appeal to an adjudicator

against the decision that he requires leave or against the refusal.

However, a person is not entitled to appeal against a refusal of leave

to enter so long as he is in the United Kingdom unless he was refused

leave at a port of entry and at a time when he held a current entry

clearance or was a person named in a current work permit.  Entry

clearance is not normally available for refugees.  Since the

applicants in the present case did not have current entry clearances

or work permits, their appeals under section 13 had to be lodged from

outside the United Kingdom.

112.    The procedure for determining an appeal by an asylum seeker

against a refusal of leave to enter is governed by the Immigration

Appeals (Procedure) Rules 1984 (S.I. 1984/2041).  An appellant can be

represented at the appeal by the United Kingdom Immigrants' Advisory

Service (UKIAS) which is funded by the Secretary of State under

section 23 of the 1971 Act for the purpose of enabling it to give

advice and assistance to those with appeal rights under the Act.

Alternatively, an appellant can be represented by solicitors.  Since

the Government provide UKIAS with funds to enable it to provide free

advice and assistance to appellants, there is no provision for legal

aid for those who are represented privately by solicitors.  Provision

is made in the Immigration Appeals (Procedure) Rules 1984 for the

submission of an explanatory statement by the Government (rule 8);

for the appellate authority to require the furnishing of particulars

(rule 25);  for the summoning of witnesses (rule 27);  for each party

to the appeal to be heard (rule 28);  for the receiving of oral,

written or other evidence (rule 29);  and the inspection of

documentary evidence (rule 30).  No provision is made in the

Immigration Rules for an appellant to return to the United Kingdom to

attend his appeal, but his representations may be submitted in writing

or through his representative.  The appellant may seek an expedited

hearing from the appellate authorities.  If the appeal is successful,

the adjudicator under section 19 of the 1971 Act, or the Tribunal

under section 20 of that Act, shall make such directions for giving

effect to the determination as is necessary.  In the case of a

successful appeal from abroad by an asylum seeker the direction may

require the entry clearance officer to grant the necessary entry

clearance to enable the appellant to return to the United Kingdom if

he were still able to do so by then.  The statute requires compliance

with any such direction.  The adjudicator or Tribunal may also make

recommendations with respect to any other action which the adjudicator

or Tribunal consider should be taken in the case.  Either party may

appeal the adjudicator's determination to the Immigration Appeal

Tribunal.  In addition, the Tribunal's determination can be challenged

by judicial review and legal aid is available, if necessary, for this

purpose.

        b)  Judicial review

113.    The question whether an application for asylum in the United

Kingdom should be granted is one for the determination of the

Secretary of State, subject to the statutory right of appeal on the

merits described above.  There is no power in a court (as opposed to

the appellate authorities) to determine whether a person is a

refugee.  However, the decision of the Secretary of State is liable to

judicial review and may be quashed on a variety of grounds.  Leave to

apply for judicial review may be obtained at short notice and legal

aid may be available, for the purposes of such an application, to any

person regardless of nationality whose application for asylum on

arrival in the United Kingdom has been refused.

114.    The courts will examine whether the Home Secretary has

correctly interpreted the law in relation to the grant or refusal of

asylum.  If the courts are satisfied that he has made no error of law

they may nevertheless review the refusal of asylum in the light of the

"Wednesbury principles" (Associated Provincial Picture Houses Ltd v.

Wednesbury Corporation <1948> I K.B. 223).  The challenge in the

courts of the Home Secretary's exercise of discretion is thereby

limited to investigation of whether he left out of account a factor

that should have been taken into account or took into account a factor

he should have ignored, or whether he came to a conclusion so

unreasonable that no reasonable authority could have reached it.

115.    The extent and effect of judicial review was demonstrated by

the House of Lords in the Bugdaycay case (R v.  Home Secretary ex parte

Bugdaycay and Others <1987> 1 All ER 940) when it was held that the

Home Secretary had indeed failed to appreciate a factor which he

should have specifically dealt with.  This failure was held to be

fatal to the refusal of asylum.  Lord Bridge, while acknowledging the

limitations of the Wednesbury principles, explained that the courts

will apply them extremely strictly against the Home Secretary when a

refusal of asylum is under review:

        " ... all questions of fact on which the discretionary

        decision whether to grant or withhold leave to enter or

        remain must necessarily be determined by the Immigration

        Officer or the Secretary of State ...  The question

        whether an applicant for leave to enter or remain is or

        is not a refugee is only one, even if a particularly

        important one ... of a multiplicity of questions which

        immigration officers and officials of the Home Office

        acting for the Secretary of State must daily determine

        ... determination of such questions is only open to

        challenge in the courts on well-known Wednesbury

        principles ... there is no ground for treating the

        question raised by a claim to refugee status as an

        exception to this rule ...

        Within those limitations the court must, I think, be

        entitled to subject an administrative decision to the

        more rigorous examination to ensure that it is in no

        way flawed, according to the gravity of the issue which

        the decision determines.  The most fundamental of all

        human rights is the individual's right to life and

        when an administrative decision is under challenge is

        said to be one which may put the applicant's life at

        risk, the basis of the decision must surely call for

        the most anxious scrutiny."

116.    Lord Templeman added:

        "In my opinion where the result of a flawed decision

        may imperil life or liberty a special responsibility

        lies on the court in the examination of the decision

        making process."

117.    It is to be stressed, however, that the courts' control is

limited to a review of whether there has been a defect in the decision

making process (Lord Templeman, R v.  Home Secretary ex parte Musisi

(1987) 1 All ER 514).

118.    The courts have held that it is appropriate that the Secretary

of State should remain the authority who determines whether passengers

arriving at the ports should be allowed to remain as refugees on the

basis that he is the only authority with the knowledge and expertise

to make a proper determination on these matters.  Moreover, the courts

have held that, whereas it is appropriate for judges to review the

Secretary of State's decision on an application for judicial review,

it is not appropriate for judges to have the role themselves of

determining applications in the first instance.  Lord Justice Lawton

commented as follows in R v.  Nazari <1980> 3 All ER 880 in the Court

of Appeal at page 885:

        " ... the courts are not concerned with the political

        systems which operate in other countries.  They may be

        harsh;  they may be soft;  they may be oppressive;  they

        may be the quintessence of democracy.  The court has no

        knowledge of those matters over and above that which is

        common knowledge and that may be wrong.  In our judgment

        it would be undesirable for this court or any other court

        to express views about regimes which exist outside the

        United Kingdom of Great Britain and Northern Ireland.

        It is for the Home Secretary to decide in each case

        whether an offender's return to his country of origin

        would have consequences which would make his compulsory

        return unduly harsh.  The Home Secretary has opportunities

        of informing himself about what is happening in other

        countries which courts do not have ..."

119.    This approach was confirmed by the House of Lords in

aforementioned Bugdaycay case, where Lord Templeman stated as follows

at page 955 c and d:

        "The 1971 Act does not allow the courts of this country

        to participate in the decision making or appellate processes

        which control and regulate the right to enter and remain

        in the United Kingdom.  This also is not surprising.

        Applications for leave to enter and remain do not in

        general raise justiciable issues.  Decisions under the

        Act are administrative and discretionary rather than

        judicial and imperative.  Such decisions may involve the

        immigration authorities in pursuing inquiries abroad, in

        consulting official and unofficial organisations and in

        making value judgments.  The only power of the court is

        to quash or grant other effective relief in judicial

        review proceedings in respect of any decision under the

        Act of 1971 which is made in breach of the provisions of

        the Act or the rules thereunder or which is the result

        of procedural impropriety or unfairness or is otherwise

        unlawful."

120.    The courts have indicated that in considering whether to grant

leave to apply for judicial review to asylum seekers who have been

refused leave to enter the United Kingdom they attach considerable

importance to the giving of reasons by the Secretary of State for his

decision to refuse asylum (see R v.  Secretary of State for the Home

Department ex parte Gurmeet Singh (22 May 1987) unreported).  Since

the Singh case the Home Office now gives asylum seekers a written

statement of the reasons for the decision.  This facilitates the

courts' review task.

121.    Additional features of the judicial review process are that:

        (aa)  it has been established that an asylum seeker, in order

        to satisfy the test that he has a well-founded fear of

        persecution, does not need to prove that fear on a balance

        of probabilities.  A lesser degree of likelihood is

        sufficient: "reasonable chance", "substantial grounds for

        thinking" or "a serious possibility";

        (bb)  although the Home Secretary stated in the House of

        Commons on 3 March 1987 that there can be no expectation

        that asylum seekers will automatically be allowed to stay

        in the United Kingdom until proceedings are completed,

        the practice is usually that no applicant is removed from

        the United Kingdom once he has obtained leave to apply for

        judicial review.  In this context it is important to note

        that leave is granted at a point in the proceedings when

        the applicant only has to show that he has an arguable

        legal point in his favour;

        (cc)  if an application for leave to apply for judicial

        review is refused a renewed application can be made to

        the Court of Appeal;

        (dd)  even after the full hearing of the application for

        judicial review the applicant can appeal on points of law

        to the Court of Appeal as of right and can appeal to the

        House of Lords either with the leave of the Court of

        Appeal or the House of Lords.

        c)  The UKIAS referral system

122.    Since 1983 where an asylum seeker is otherwise unrepresented,

his case may be referred to the Government subsidised United Kingdom

Immigrants' Advisory Service (UKIAS) for advice or other welfare

services.

123.    Since 1 September 1988 no category of asylum seeker is

automatically excluded from the referral system.  Where a person can

be sent to a third country where he does not fear persecution, UKIAS

will be telephoned to establish whether they wish to interview that

person, in which case two days will be allowed for this to be done and

representations made.  Where an unrepresented person is likely to be

sent back to a country where he claims to fear persecution, if the

Home Office proposes to refuse the asylum application it will refer

the case to UKIAS who will have one week (for those in detention) or

four weeks (for those not detained) to make representations.

Ministers will take the relevant decision if the Home Office cannot

follow UKIAS recommendations.

        d)  Members of Parliament

124.    Members of Parliament (MPs) frequently make representations to

the Minister about unsuccessful asylum seekers or other expulsion

cases.  Prior to March 1987 a mere telephone contact could stop a

removal pending further representations being made.  New arrangements

are under consideration in which, for example, a five day stay of

removal could be agreed if new and compelling evidence has become

available which the Home Office has been unable to consider.

        e)  The decision making process in asylum cases

125.    Where an application for asylum is made on arrival at the

port, an immigration officer will, with the aid, if necessary, of an

interpreter, interview the passenger.  Immigration officers are

trained in asylum matters as part of their general training.  A recent

development has been the involvement of the United Nations High

Commissioner for Refugees in this training.  The matter is then, in

pursuance of Rule 73 of the Immigration Rules, referred to the

specialist Refugee Section of the Home Office's Immigration and

Nationality Department.  No decision on an asylum application is taken

by an immigration officer at the port.

126.    The specialist Refugee Section has a large staff, who are

divided into geographical sections under four Senior Executive

Officers ("SEO's") responsible for the Middle East, the Far East,

Africa and Eastern Europe/the Americas.  The Section is headed jointly

by two grade 7's (i.e. the former Principal grade) to each of whom two

SEO's report.  There is also a Research Unit which collates and

disseminates background information on specific countries and supports

the grade 7's on policy work.  The whole Section is led by the Head of

Division (grade 5, the former Assistant Secretary grade).

127.    An application is considered initially by an Executive Officer

in the appropriate geographical section.  It is then assessed with a

recommendation to a Higher Executive Officer.  He or she may decide to

grant asylum or exceptional leave;  a decision to refuse outright must

be taken at at least SEO level.  Cases which are complex or about

which an officer has particular doubts can be referred up to the

higher grade officers.  A considerable degree of specialised knowledge

and experience can therefore be applied.

128.    These arrangements are subject to the referral arrangements

with UKIAS described above.  Where in any case referred to UKIAS

officials feel unable to grant an application following

representations from UKIAS against refusal, the case will be referred

to a Minister for decision and UKIAS will be informed of the issues to

be put before the Minister.

129.    In the applicants' cases the decision to refuse asylum was

taken at ministerial level following a recommendation to that effect by

the Head of Division.  In making this recommendation and taking this

decision, account was taken by the Minister and the Far East Section

of the Refugee Section not only of all the representations made on

behalf of the applicants but also of the position of Tamils as an

ethnic group within Sri Lanka and the prevailing conditions within the

country, which are monitored on a regular basis.  Information about

the situation in Sri Lanka is derived from a wide range of sources.

In particular, the Far East section has available to it information

collected by the Research Unit of the Refugee Section, one of whose

functions is to collect, collate and disseminate information about

developments in countries which are relevant to the consideration of

asylum applications.  The section derives its information about Sri

Lanka from numerous sources, including reporting telegrams from the

British High Commission in Colombo and advice from the Foreign and

Commonwealth Office, information from thousands of asylum applicants

from Sri Lanka, information from the United Nations High Commissioner

for Refugees, press articles, journals and reports from organisations

like Amnesty International directly concerned with the country.  The

Foreign and Commonwealth Office supply information derived from

diplomatic representatives about developments in particular countries,

including Sri Lanka, on a routine basis.  The combined sources of

information provide a substantial body of material about the situation

in Sri Lanka and the position of the communities within it, in

particular the Tamil community.  This information has been further

supplemented by visits paid to Sri Lanka by the Ministers of State,

Mr.  David Waddington in April 1987, succeeded by Mr.  Timothy Renton

in September 1987.

130.    Now that the applicants have returned to the United Kingdom,

should they apply for refugee status their cases will be considered on

the merits in the light of all the circumstances at the present time.

Moreover, if they were to be refused asylum then, provided the

application is made within the next 12 months during their current

leave to remain in the United Kingdom, they would have a right of

appeal from within the United Kingdom to the adjudicator and

Immigration Appeal Tribunal under section 14 of the Immigration Act

1971.

        f)  The law and practice in the case of refugees to whom

            the 1951 Refugee Convention does not apply

131.    The power to give or refuse leave to enter and to remain in

the United Kingdom, in a case of a person not having refugee status

under the 1951 Refugee Convention, is exercisable at the discretion of

the Secretary of State.  Accordingly, if a person entering the United

Kingdom is found not to be entitled to have refugee status, but

nevertheless alleges that if he is returned to his own country he runs

a real risk of being subjected to treatment inconsistent with the

provisions of Article 3 of the Convention, the Secretary of State, in

the exercise of his discretion, could decide that exceptional leave to

enter should be given.  The respondent Government state that in 1988

57,4% of decisions in asylum cases were to give exceptional leave,

usually on humanitarian grounds, and in 25,4% of the cases the

entitlement to refugee status was accepted. 17,2% were outright

refusals.  In 1988 235 Sri Lankans were given exceptional leave.

132.    The remedies against the refusal of leave to enter the United

Kingdom for persons not having refugee status under the 1951 Refugee

Convention are those described in paragraphs 109-111 above, which

apply to all persons seeking leave to enter the United Kingdom.  A

decision of the Secretary of State not to grant leave to a person who

claimed, in substance, that he would be subjected to treatment

inconsistent with Article 3 of the Convention could be challenged in

judicial review proceedings on the aforementioned principles of

administrative law (para. 114 above).

III.    OPINION OF THE COMMISSION

A.      Points at issue

133.    The following are the points at issue in the present

applications:

-       whether the applicants' removal to Sri Lanka was in breach of

Article 3 (Art. 3) of the Convention because it exposed them to a real

risk of torture or inhuman or degrading treatment in that country;

-       whether the applicants had an effective remedy, pursuant to

Article 13 (Art. 13) of the Convention, in respect of their complaint

that their removal to Sri Lanka exposed them to such a risk.

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

134.    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."

135.    The applicants complained that their removal to Sri Lanka in

February 1988 by the United Kingdom was in violation of Article 3

(Art. 3) of the Convention.  They submitted, inter alia, that the

removal exposed them to a serious risk of persecution and the kind of

ill-treatment proscribed by Article 3 (Art. 3) of the Convention.

They commented that the risk materialised on their return (cf.

adjudicator's determination of 13 March 1989, paras. 101-102 above).

The applicants noted that the facts of the cases were not seriously in

dispute and that the Government must have known from all the reports

coming from Sri Lanka at the material time that the situation there

had not settled.  By December 1987 it was known that there had been

bloody confrontations between Tamils and the Indian Peace Keeping

Forces (IPKF) in northern Sri Lanka and Amnesty International's

reports catalogued claims of arbitrary killings, torture, detention

and disappearances in the Tamil communities.  The information

available at the time of the applicants' removal to Sri Lanka was,

according to the applicants, sufficient to deduce that their fears of

suffering a similar fate were eminently reasonable.

136.    The Government contended, inter alia, that the applicants'

removal to Sri Lanka did not constitute a breach of Article 3 (Art. 3)

of the Convention.  They considered that at the material time all the

inhabitants of Sri Lanka faced risks from terrorist violence and the

security forces' efforts to contain it.  The situation did appear to

be improving towards the end of 1987 and the beginning of 1988 as the

IPKF took on security duties following the Indian/Sri Lankan Accord of

July 1987 and the United Nations High Commissioner for Refugees began

the Tamil repatriation programme.  The Secretary of State, whilst

acknowledging the civil disorder in Sri Lanka, did not consider that

the applicants personally faced persecution.  The original incidents

related by the applicants were deemed to be random and part of the Sri

Lankan army's general activities to deal with Tamil extremists.  The

ill-treatment which had allegedly been suffered on return to Sri Lanka

could not be verified by the Government and was, in their view,

irrelevant to the Convention issues.  When the applicants' cases came

before the adjudicator in March 1989, the Secretary of State did not

seek to challenge substantially the facts alleged by the applicants,

but challenged the applicants' interpretation of the situation in Sri

Lanka and the conclusions drawn from that.  The Government maintained

the Secretary of State's view that at the time of the applicants'

removal from the United Kingdom in February 1988 they did not face a

real personal risk of being singled out for ill-treatment contrary to

Article 3 (Art. 3) of the Convention in Sri Lanka.

137.    The Commission refers to the judgment of the European Court of

Human Rights in the Soering case, confirming the Commission's

consistent case-law that Contracting States have an obligation under

Article 3 (Art. 3) of the Convention not to send people to countries

where there are substantial grounds for believing that they would be

in danger of being subjected to treatment proscribed by Article 3

(Art. 3) (Eur. Court H.R., Soering judgment of 7 July 1989, Series A

no. 161 paras. 86-91):

        "In sum, the decision by a Contracting State to extradite

        a fugitive 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, if extradited, faces a

        real risk of being subjected to torture or to inhuman or

        degrading treatment or punishment in the requesting country.

        The establishment of such responsibility inevitably involves

        an assessment of conditions in the requesting country

        against the standards of Article 3 (Art. 3) of the Convention.

        Nonetheless, there is no question of adjudicating on or

        establishing the responsibility of the receiving country,

        whether under general international law, under the

        Convention or otherwise.  In so far as any liability under

        the Convention is or may be incurred, it is liability

        incurred by the extraditing Contracting State by reason

        of its having taken action which has as a direct consequence

        the exposure of an individual to proscribed ill-treatment."

        (Ibid para. 91).

138.    The Soering case concerned extradition, but these general

considerations are of equal relevance to any forced removal of a

person to a country where he would face such a real risk.  In the

Soering case the situation was that a likely course of events would

result in exposure to treatment proscribed by Article 3 (Art. 3) as

regards the "death row phenomenon".  The present cases are different.

The risks that the applicants ran of such treatment followed from the

general situation and were risks shared by all non-combatants

resulting from security operations in the north and east of Sri Lanka

and there and elsewhere the risk shared by all of being subjected to

security checks and interrogation.

139.    In the examination of the nature and extent of the risk

involved, and of the Contracting State's responsibility in exposing a

person to this kind of risk, the Convention organs must primarily

analyse the information which was available at the time of the removal

or proposed removal, for it is at this stage that the liability of the

Contracting State is incurred.  As indicated in the Soering case, the

Contracting State is not directly responsible under the Convention for

the acts of the receiving State.  However, what happens to the asylum

seeker on return cannot be wholly ignored as it may cast light on

whether the risk has been rightly or wrongly assessed by the

Contracting State.

140.    The Commission must now turn to the assessment of the

conditions in Sri Lanka for Tamils in general, and the individual

applicants in particular, at the time of their removal to that country

in February 1988, against the standards of Article 3 (Art. 3) of the

Convention.  It notes that the information coming out of that country

was unclear.  On the one hand the Office of the United Nations High

Commissioner for Refugees (UNHCR) did not consider Tamils to be

refugees for the purposes of the 1951 UN Convention Relating to the

Status of Refugees (the 1951 Refugee Convention).  At the request of

the Sri Lankan and Indian Governments, following their July 1987

Accord, it organised, from December 1987 onwards, a programme of

voluntary repatriation of Sri Lankan Tamils, mostly from India.  On

the other hand it was urging the United Kingdom not to return Tamils

to Sri Lanka because of the instability there.  The British Council of

Refugees reported widespread devastation, very difficult living

conditions and persistent fighting between Tamil terrorists and the

IPKF, yet noted a slow easing of the situation in November 1987.  It

may not, therefore, have been certain by February 1988 that the July

1987 Accord between the Indian and Sri Lankan Governments would fail

and that the IPKF would be unable to stabilise the situation in the

north and east of Sri Lanka.

141.    The Commission observes that there is no serious dispute

as to the facts of the present cases.  What is contested is the

interpretation to be given to those facts.  The applicants contended

that as young male Tamils who had already been caught up in the ethnic

conflict in Sri Lanka and exposed to real danger between 1984 and

1987, they faced a real risk of severe ill-treatment on return in

February 1988 because the situation had not fundamentally changed,

even if the excesses of the Sri Lankan army had been to a large extent

replaced by the excesses of the IPKF.  The Government contended that

the original incidents related by the applicants were examples of the

general random activities of the security forces in dealing with

terrorist extremists and did not indicate that the applicants had been

personally singled out for persecution.  The same would apply on their

return because the whole of the civilian population in Sri Lanka, in

the Government's view, ran a risk of being caught up in the fighting.

142.    In view of these conflicting elements, the Commission

considers that the present cases turn on the questions whether the

United Kingdom Government exposed the applicants to a real personal

risk of treatment proscribed by Article 3 of (Art. 3) the Convention in

removing them to Sri Lanka in February 1988, or whether the situation

in that country was then such that it was reasonable in the

circumstances for the United Kingdom Government to conclude that on

return young male Tamils like the applicants would not necessarily be

subjected to such a risk.

143.    The Commission notes that in February 1988 there was the

appearance of an improvement in the situation in the north and east of

Sri Lanka.  There the Sinhala dominated security forces were no longer

in charge, the IPKF having taken over from them.  Though there was

still occasional fighting between units of the IPKF and groups of

Tamil militants who rejected the Accord, the major fighting at Jaffna

had ended.  The voluntary repatriation of Tamil refugees under a UNHCR

programme, constituted on the basis of a memorandum of understanding

with the Government of Sri Lanka signed on 31 August 1987, began at

the end of December 1987.  Between April and August 1988 over 5,000

Tamils had returned under the UNHCR arrangements to the Jaffna

district.  Others had returned independently.  It would therefore

appear that, in the view of UNHCR at least, the position had improved

to the extent that the return of a large number of refugees was

justifiable.  The improvement was relative and though many Tamils were

going about their ordinary affairs in Sri Lanka, they, and young

Tamils in particular, were at risk of interrogation, arrest and

detention, which in some instances were accompanied by treatment

proscribed by Article 3 (Art. 3), and indeed three of the applicants allege

that they were detained and ill-treated after their return.  The

general situation in Sri Lanka was however at that time such that the

decision of the United Kingdom to send the applicants back to Sri

Lanka cannot be said to have been unreasonable or arbitrary.

Undoubtedly the applicants, like all other Tamils in Sri Lanka, were

exposed to the possibility of ill-treatment by the IPKF or the Sri

Lankan police.  Nevertheless, it cannot be said that the risk to each

member of the Tamil community, or indeed to each young male member,

was such as to constitute in the removal of the applicants to Sri

Lanka a violation of Article 3 (Art. 3) of the Convention.  The general

instability in Sri Lanka created risks for all non-combatants in

certain areas and the Commission does not find that the applicants can

be said to have faced greater personal risks on their return in

February 1988.

        Conclusion

144.    The Commission concludes, by a vote of seven to seven (1),

with a casting vote by the President, that there has been no violation

of Article 3 (Art. 3) of the Convention in respect of the applicants'

removal to Sri Lanka, given the information available at the relevant

date.

C.      As regards Article 13 (Art. 13) of the Convention

145.    Article 13 (Art. 13) of the Convention provides as follows:

        "Everyone whose rights and freedoms as set forth in

        this Convention are violated shall have an effective

        remedy before a national authority notwithstanding that

        the violation has been committed by persons acting in an

        official capacity."

-------------

  (1)   The votes were cast pursuant to Rule 18 paras. 1 and 3

        of the Rules of Procedure.

-------------

146.    The applicants complained that they had no effective domestic

remedy, contrary to Article 13 (Art. 13) of the Convention to test their

substantive Article 3 (Art. 3) claim.  They contended that the

possibilities of representations by the United Kingdom Immigrants

Advisory Service (UKIAS) and Members of Parliament on behalf of asylum

seekers could not be considered remedies, there being no mandatory

element involved in such interventions.  The possibility of an appeal

to an adjudicator under section 13 of the Immigration Act 1971 was

rendered ineffective, in the applicants' view, by the fact that it

could only be exercised from outside the United Kingdom, i.e. from Sri

Lanka, in their case.

147.    Finally, they submitted that judicial review was ineffective

in their cases because it is limited to a review of whether the

Secretary of State's decision refusing asylum was perverse, in the

sense that he omitted to have regard to material evidence.  The courts

refuse to examine the well-foundedness of an asylum application for

themselves.  The applicants alleged that the perversity test is too

restrictive, being an examination of the reasonableness of the

Secretary of State's decision, not the reasonableness of the

applicants' fears, and the considerations relevant to Article 3

(Art. 3) of the Convention being limited to refugee status under the

relevant immigration rules (reflecting the criteria of the 1951

Refugee Convention).  The applicants further criticised the fact that

the material on which the Secretary of State bases his decision is not

disclosed to the courts, and the assessment of the political

complexities in a foreign country is left entirely to the executive

not the judiciary.  The applicants also contended that their cases can

be distinguished from that of Soering (Eur. Court H.R., Soering

judgment, loc. cit.) because, inter alia, extradition applications

afford greater guarantees to the accused with the preliminary

proceedings before a magistrates court, habeas corpus providing

suspensive relief pending proceedings and the relative simplicity of

evidential issues in extradition cases, compared with the complexity

of evaluating the well-foundedness of a fear of persecution in asylum

cases.

148.    The Government relied on judicial review, the UKIAS referral

system, representations by Members of Parliament and an appeal to an

adjudicator under section 13 of the Immigration Act 1971 as remedies

which, in aggregate, satisfied Moreover, judicial review alone, as

recognised by the Court in the  Soering case, would satisfy the

requirements of Article 13 (Art. 13).  The case of R v. Home

Secretary, ex parte Bugdaycay and others, demonstrates the anxious

scrutiny given to a decision of the Secretary of State  which may

involve a risk to human life or treatment of the kind proscribed by

Article 3 (Art. 3) (paras. 115-116 above). The Government pointed out

that much of the argument which the applicants have placed  before the

Commission was not advanced before the English courts, which were

principally dealing with the validity of claims under the 1951 Refugee

Convention.  Despite the limitations of the latter Convention, the

Secretary of State, in accordance with the usual practice, did give

consideration to the wider humanitarian issues in these cases, in

order to determine whether exceptional leave should be  granted

outside the Immigration Rules.  However he decided that neither the

conditions in Sri Lanka nor the applicants' individual circumstances

were sufficient to justify the grant of exceptional leave.

149.    Article 13 (Art. 13) of the Convention has been interpreted in

the following way by the European Court of Human Rights in the case of

Silver and Others:

        "(a) where an individual has an arguable claim to be

        the victim of a violation of the rights set forth in the

        Convention, he should have a remedy before a national

        authority in order both to have his claim decided and,

        if appropriate, to obtain redress (see the ...  Klass and

        others judgment, Series A no. 28, p. 29, para. 64);

        (b)  the authority referred to in Article 13 (Art. 13) may not

        necessarily be a judicial authority but, if it is not,

        its powers and the guarantees which it affords are

        relevant in determining whether the remedy before it is

        effective (ibid., p. 30, para. 67);

        (c)  although no single remedy may itself entirely satisfy

        the requirements of Article 13 (Art. 13), the aggregate of

        remedies provided for under domestic law may do so (see, mutatis

        mutandis, ...  X v. the United Kingdom judgment, Series A

        no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment

        of 24 June 1982, Series A no. 50, p. 32, para. 56);

        (d)  neither Article 13 (Art. 13) nor the Convention in general

        lays down for the Contracting States any given manner for

        ensuring within their internal law the effective implementation

        of any of the provisions of the Convention - for example, by

        incorporating the Convention into domestic law (see the

        Swedish Engine Drivers' Union judgment of 6 February 1976,

        Series A no. 20, p. 18, para. 50).

        It follows from the last-mentioned principle that the

        application of Article 13 (Art. 13) in a given case will depend

        upon the manner in which the Contracting State concerned

        has chosen to discharge its obligation under Article 1

        (Art. 1) directly to secure to anyone within its jurisdiction the

        rights and freedoms set out in section I (see ...  Ireland

        v. the United Kingdom judgment, Series A no. 25, p. 91,

        para. 239)."

        (Eur.  Court H.R., Silver and Others judgment of 25 March

        1983, Series A no. 61, p. 42, para. 113)

150.    In view of the Commission's considerations regarding Article 3

(Art. 3) of the Convention above (pp. 33-38), the applicants' claim

under that Article cannot be regarded either as incompatible with the

provisions of the Convention or "unarguable" on its merits (cf. Eur.

Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no.

131, p. 23, para. 52).

151.    The principal dispute between the parties in the present case

concerns the efficacy of the remedies relied on by the Government,

either individually or in aggregate, namely, the UKIAS referral

system, representations by Members of Parliament, an appeal to an

adjudicator under section 13 of the Immigration Act 1971 or judicial

review.

152.    The Commission considers that the UKIAS referral system and

representation by Members of Parliament (paras. 122-124 above) cannot

be deemed effective remedies for the purposes of Article 13 (Art. 13)

of the Convention.  Although UKIAS or a Member of Parliament may be

able to influence the Secretary of State, who otherwise might have

refused an asylum application, their intervention on behalf of an

asylum seeker has no mandatory effect on that decision.

153.    As regards the appeal to an independent adjudicator under

section 13 of the Immigration Act 1971, the Commission finds that in

many instances it would fully satisfy the requirements of Article 13

(Art. 13) of the Convention.  The adjudicator is empowered to examine

the full merits of each case, both as regards fact and law, and may

hear evidence.  The adjudicator may also substitute his evaluation for

that of the Secretary of State and his decisions are largely binding.

However this remedy was fatally flawed in the applicants' cases

because it could only be exercised from outside the United Kingdom.

The Commission finds that the protection required by Article 3

(Art. 3) of the Convention cannot be ensured if a person has to return

to the very country where he fears persecution before he can

effectively appeal against the asylum refusal.

154.    The Commission now turns to the remaining possibility of

judicial review of the Secretary of State's decision to refuse

asylum.  It notes that in the Soering case the Court found that

judicial review satisfied a claim that extradition from the United

Kingdom to the United States   of America, where the accused would

probably face the "death row phenomenon", would be in breach of

Article 3 (Art. 3) of the Convention (Soering judgment, loc. cit.

paras. 121-124).  The Government have relied on this judgment as

demonstrating the efficacy of judicial review for the purposes of the

present cases.  The applicants have sought to distinguish their cases

from the Soering judgment.

155.    The Commission considers that the remedy of judicial review

does not meet the requirements of Article 13 (Art. 13) of the

Convention in the present case.  The Commission notes that judicial

review is available in respect of decisions taken under prerogative

powers as well as in respect of decisions taken under statutory powers

(see Council of Civil Service Unions v.  Minister of the Civil Service

<1984> 3 All E.R. 935).  A successful challenge to a decision could

however only be made on the Wednesbury basis (see para. 114 above) or,

as formulated in the Civil Service Unions case, on the ground of

illegality, irrationality or procedural impropriety.  In the present

cases the only ground on which the refusal of the Secretary of State

to allow the applicants to remain in the United Kingdom could be

challenged was that the decision was irrational, that is to say, a

decision which no reasonable Secretary of State could have made.  The

Commission is of the opinion that the consideration of the possible

perversity of the executive's decision in these cases is too

restrictive an examination in view of what may be at stake, namely the

possibility of someone being returned to a country where he would

allegedly be a target for arbitrary detention, torture, disappearance

or the like.

156.    The Commission notes that judicial review by the English

Courts has significantly progressed over the last 20 years to check

the arbitrariness of administrative decisions.  Furthermore, in asylum

cases the Courts have examined with care the application of the

Immigration Rules and the 1951 Refugee Convention.  The position

however remains that in judicial review proceedings the Courts are

concerned with the way in which a decision is taken and not with the

merits of a decision.  They have deliberately refrained from examining

the well-foundedness of the asylum seeker's claims or from reviewing

any of the material on which the Secretary of State has based his

decision.  There is nothing in the facts of the applicants' cases

which suggests that the Secretary of State's refusal to grant

compassionate leave to remain in the United Kingdom could have been

the subject of a successful application for judicial review.

157.    The Commission is also of the opinion that the present

applications can be distinguished on the facts from the Soering case.

In the Soering case the applicant, charged with particularly heinous

offences, was to be returned to a stable country, the United States of

America, where the rule of law and due process are respected.  Mr.

Soering had the benefit of proceedings before the magistrates court,

whose findings led to the decision of the Secretary of State to

extradite him to the United States.  He also had the possibility of

seeking a writ of habeas corpus, as well as judicial review.

Moreover, the evidential issues on the question of the risk of the

death penalty and the ensuing "death row phenomenon" were

comparatively simple in that case.

158.    In the present cases it is not alleged that the applicants

were involved in terrorist activities in Sri Lanka, or indeed in any

criminal offences.  They were to be returned to a country which had

been devastated by civil war in the areas where the applicants would

normally be expected to live.  Stability and order had not been fully

restored in Sri Lanka even if there were some signs of amelioration.

The examination of the situation in Sri Lanka at the relevant time

raised complex evidential issues which were not decided by the English

courts.  There was only one independent forum, that of limited

judicial review by the High Court of the reasonableness of the

Secretary of State's decision, before whom the present applicants

could put their case prior to removal, but, as the Commission has

already noted, this court did not even seek the disclosure of the

material upon which the Secretary of State based his decision.

159.    In the Commission's view, the remedies afforded to asylum

applicants, for the purposes of Article 13 (Art. 13) of the

Convention, should be equal to, if not greater than, the judicial

safeguards afforded in extradition proceedings.  Yet in the present

cases it seems that adequate safeguards were not forthcoming in the

judicial review proceedings.

160.    The Commission is not persuaded that the four remedies relied

on by the Government could, as an aggregate, be said to satisfy

Article 13 (Art. 13) of the Convention.  In matters as vital as asylum

questions it is essential to have a fully effective remedy providing

the guarantees of a certain independence of the parties, a binding

decision-making power and a thorough review of the reasonableness of

the asylum seeker's fear of persecution.

        Conclusion

161.    The Commission concludes, by 13 votes to one, that there has

been a violation of Article 13 (Art. 13) of the Convention, in that the

applicants did not have any effective domestic remedies available to

them in respect of their claim under Article 3 (Art. 3) of the Convention.

D.      Recapitulation

162.    The Commission concludes, by a vote of seven to seven, with a

casting vote by the President, that there has been no violation of

Article 3 (Art. 3) of the Convention in respect of the applicants'

removal to Sri Lanka, given the information available at the relevant

date (para. 144 above).

163.    The Commission concludes, by 13 votes to one, that there has

been a violation of Article 13 (Art. 13) of the Convention, in that the

applicants did not have any effective domestic remedies available to

them in respect of their claim under Article 3 (Art. 3) of the Convention

(para. 161 above).

    Secretary to the Commission          President of the Commission

           (H.C. KRÜGER)                       (C.A. NØRGAARD)

        Partly dissenting opinion of MM. Trechsel, Ermacora,

        Gözübüyük, Campinos, Mrs.  Thune, Mr.  Rozakis and

        Mrs.  Liddy, as regards the issue under Article 3

        of the Convention

        We consider that there has been a violation of Article 3 of

the Convention in the present cases for the following reasons:

        We are of the opinion that even on the Government's analysis

of the situation in Sri Lanka in February 1988 the applicants faced a

real risk of severe ill-treatment on return to that country.  As young

male Tamils being returned through the town of Colombo, dominated by

Sinhalese, with widespread devastation and continued fighting between

the Tamil terrorists and the security forces in the north and east of

that country, it was likely that they would be caught up in the

troubles and exposed to a genuine risk to life and limb.  There were

no unambiguous signs of any amelioration of this civil disorder.  We

are not persuaded that the voluntary repatriation programme organised

by the UNHCR was a clear indication of an appeasement in the general

situation in Sri Lanka, given the fact that this programme was not

initiated by the UNHCR, but was its response to the request of the Sri

Lankan and Indian Governments and was limited to the voluntary

repatriation of Tamils who were mostly in India.  It did not include

the involuntary repatriation of Tamils from Western Europe.  Indeed

the UNHCR had continuously urged that these people, including the

present applicants, should not be forced to return, a plea supported

by Amnesty International and other humanitarian organisations.

        In our view, the cases of the fourth and fifth applicants were

particularly aggravated by sending them back to Sri Lanka without

their identity cards, thus making any travelling even more hazardous

because of the numerous security check points on the roads.   We also

find the circumstances of the return of the fourth applicant further

aggravated by his young age (he was born in 1970).

        Our opinion is further confirmed by the decision of the

independent adjudicator on 13 March 1989 in these cases.  He had an

opportunity to hear the parties on the substantive issues of fact

(except for the third applicant's allegations, para. 70 above, which

were made afterwards) and largely believed the applicants' allegations

concerning events both before and after their return to Sri Lanka.

He concluded that the applicants had had a well-founded fear of

persecution and that they should have been entitled to political

asylum at the material time as conditions, in his view, had not

materially changed in Sri Lanka by February 1988.

        Further dissenting opinion of Mrs.  Liddy as regards

        the issue under Article 13 of the Convention

        Further to my dissenting opinion on the Article 3 issue in

these cases, I am also unable to agree with the opinion of the

majority of the Commission that Article 13 of the Convention has been

violated.  My reason for this is that I share the Government's view

that judicial review alone, as recognised by the Court in its judgment

in the Soering case, can satisfy the requirements of Article 13 of the

Convention in cases where the decision challenged may involve a risk

to human life or treatment of the kind proscribed by Article 3.

                                Appendix I

                HISTORY OF THE PROCEEDINGS BEFORE THE COMMISSION

     Date                                  Item

________________________________________________________________

26.08.87                        Introduction and registration of

                                application nos. 13163/87, 13164/87

                                and 13165/87.  Notice given of

                                applications to the respondent

                                Government by the Secretary to

                                the Commission.

16.12.87                        Introduction and registration of

                                application nos. 13447/87 and

                                13448/87.  Applicants' request for

                                an indication under Rule 36 of

                                the Rules of Procedure.

18.12.87                        Commission's refusal of Rule 36

                                request.

Examination of admissibility

13.04.88                        Commission's deliberations and

                                decision to invite the parties to

                                submit their written observations

                                on admissibility and merits.

31.08.88                        Government's observations.

11.11.88                        Legal aid granted in application

                                nos. 13164/87 and 13447/87 by

                                the President.

24.11.88                        Applicants' reply to Government's

                                observations.

10.03.89                        Consideration of the state of

                                proceedings

11.04.89                        Commission's deliberations and

                                decision to hold a hearing.

                                Applications joined.

07.07.89                        Hearing on admissibility and

                                merits, the parties being

                                represented as follows:

                                Government:

                                Mr.  N. Parker, Government Agent

                                Mr.  M. Baker )

                                Mr.  J. Eadie ) Counsel

                                Mr.  D. Seymour   )

                                Mr.  N. Sanderson ) Home Office

                                Applicants

                                Mr.  D. Burgess ) Solicitors, Messrs.

                                Mr.  C. Randall ) Winstanley-Burgess

                                Mr.  N. Blake, Counsel.

07.07.89                        Commission's deliberations and

                                decision to declare the applications

                                admissible.

Examination of the merits

07.07.89                        Commission's deliberations on the

                                merits.

10.08.89                        Parties invited to submit further

                                written observations on the merits.

08.09.89                        Legal aid granted in application

                                nos. 13163/87, 13165/87 and 13448/87.

06.10.89                        Government's observations.

11.10.89                        Applicants' reply.

13.12.89                        Commission's deliberations on the

                                merits.

08.05.90                        Commission's deliberations on the

                                merits and final votes.

                                Adoption of Report.

 

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