Nk v. The United Kingdom

 

        The European Commission of Human Rights sitting in private on

14 May 1987, the following members being present:

 

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        J.A. FROWEIN

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        J.C. SOYER

                        H.G. SCHERMERS

                        H. DANELIUS

                        G. BATLINER

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                   Mr.  F. MARTINEZ

 

                   Mr.  H.C. KRÜGER, Secretary to the Commission

 

 

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

 

        Having regard to the application introduced on 17 May 1982 by

N.K. against the United Kingdom and registered on 18 May 1982 under file

No. 9856/82;

 

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

 

        Having regard to:

 

-       the Commission's decision of 8 December 1984 to adjourn its

        examination of the application pending the conclusion of

        domestic proceedings or the applicant's imminent deportation;

 

-       the applicant's further submissions of 22 August 1985;

 

-       the Commission's decision of 18 October 1985 to communicate

        the application to the respondent Government and request them

        to submit written observations on its admissiblity and merits;

 

-       the respondent Government's letter of 11 February 1986 and the

        applicant's comments thereon of 5 March 1986;

 

-       the Commission's decision of 13 March 1986 again to request

        observations in writing on the admissibsility and merits of

        the application;

 

-       the observations of the respondent Government on the

        admissiblity only of the application dated 11 June 1986 and

        the applicant's submissions in reply dated 4 July 1986;

 

-       the exchange of correspondence between the parties summarised

        to the Commission in the respondent Government's letter of

        3 December 1986 and the applicant's representative's letter of

        29 January 1987;

 

-       the further report prepared under Rule 40 and presented to

        the Commission on 11 December 1986 and the Commission's

        deliberations thereon;

 

        Having deliberated;

 

        Decides as follows:

 

THE FACTS

 

        The facts as they have been submitted on behalf of the

applicant, a Sri Lankan citizen born in 1959, and a student, currently

living in England, by Sir James Fawcett QC and Dr.  R. Plender,

instructed by the United Kingdom Immigrants Advisory Service of London

WC2, may be summarised as follows:

 

        The applicant is a Tamil who was given leave to enter the

United Kingdom as a student on 9 September 1977.  The permission was

granted for one year, and the applicant was sponsored by his brother

who was resident in the United Kingdom.  The permission was extended,

subject to a continuing condition prohibiting the applicant from

taking employment until September 1979.

 

        The applicant became estranged from his brother, who ceased to

support him.  He took employment to support himself, and in May 1979

was convicted before the Ealing Magistrates for breaching a condition

of his leave to enter the United Kingdom, contrary to Section 24

(1)(b)(ii) of the Immigration Act 1971 ("the 1971 Act"), and fined £50.

 

        The applicant applied for a further extension of his leave to

remain in the United Kingdom, which application was refused on 8

August 1980.  The applicant appealed against this refusal, but did not

attend that appeal, which was dismissed on 2 September 1981.  The

applicant anticipated that the outcome of the hearing would be

unfavourable to him, and feared being returned to Sri Lanka.  From the

date of the dismissal of his appeal the applicant became liable to

deportation as an overstayer.

 

        On 27 January 1982 the applicant was arrested and charged with

remaining in the United Kingdom beyond the time permitted by his

leave, contrary to Section 24 (1)(b)(i) of the 1971 Act.  On

19 February 1982 he was convicted by Camberwell Green Magistrates'

Court of this offence, and fined £70, with an alternative of 14 days

imprisonment, with the recommendation of his deportation from the

United Kingdom.  The applicant was unable to pay the fine and

therefore served the period of imprisonment.  He continued to be

detained thereafter, pending the making of a deportation order in

accordance with paragraph 2 (1) of Schedule 3 to the 1971 Act.  He

appealed against the recommendation that he be deported but, on 24

March 1982, he withdrew that appeal.

 

        On 24 February 1982 the applicant's then solicitors wrote to

the Home Office stating that he wished to apply for political asylum.

On 16 March 1982 the applicant was interviewed at Ashford Remand

Centre in connection with his asylum application.  On 20 April 1982

the Home Office replied that a deportation order had been made against

the applicant on 15 April 1982.  The reply did not refer to the

applicant's request for asylum.  Before receiving the Home Office's

reply, the applicant's solicitors wrote a letter drafted by counsel on

16 April 1982 to the Home Office setting out the basis of the

applicant's claim for asylum.  This letter referred to the outbreak of

serious communal violence in Sri Lanka in July and August 1981, the

declaration of a state of emergency on 17 August 1981 and a report

dated 20 September 1981 concerning the holding of Tamils

incommunicado.

 

        The same letter set out the applicant's activities in the

United Kingdom on behalf of Tamil separatists.  The applicant had been

involved, since his arrival in the United Kingdom, with the political

question of the situation of Tamils in Sri Lanka.  This political

activity had continued after the commencement of the communal violence

in Sri Lanka.  The applicant was closely concerned with a leader of

the separatist movement who had apparently received asylum.  The

applicant had distributed leaflets at the Sri Lankan High Commission

and elsewhere, had picketed a Sri Lankan exhibition at the

Commonwealth Institute, and had attended meetings at which the idea of

a separate Tamil State was discussed.  He considered it inconceivable

that the Sri Lankan authorities might be ignorant of his activities

and possible that they would torture him on his return.

 

        By further letter of 22 April 1982 the applicant's then

solicitors asked the Home Office to reconsider the decision to deport

the applicant in view of the contents of their letter of 16 April

1982.

 

        The Home Office replied on 27 April 1982 stating that the

applicant had failed to satisfy the Secretary of State that he had a

well-founded fear of individual persecution on the grounds of his

political opinions.  The letter noted that there were nearly three

million Tamils in Sri Lanka, many of whom occupied positions of

authority, and that for the most part the Tamil and Sinhalese

communities lived peaceably together.  The letter also recorded that

the main political parliamentary opposition party was the Tamil United

Liberation Front (TULF) and that political involvement with the TULF

would not constitute the basis for a valid claim to asylum in the

United Kingdom, in view of the fact that the TULF was the officially

recognised parliamentary opposition party in Sri Lanka.

 

        The applicant points out that he had not contended that he was

a member of the TULF, or involved with it.

 

        On 27 April 1982 notice of the Secretary of State's decision

to deport the applicant, together with directions for his removal to

Sri Lanka were served on him in detention.  He immediately appealed

against the direction that he be removed to Sri Lanka.  On 6 September

1982 the applicant was released from custody on bail in accordance

with paragraph 29 of Schedule 2 to the 1971 Act, and remained on

bail in accordance with that provision until the revocation of the

deportation order on 10 February 1986.

 

        On 14 July 1982 the Adjudicator dismissed the applicant's

appeal against the making of directions for removal to Sri Lanka,

finding that it was not open to the applicant to contend in the appeal

that he ought not to be removed to Sri Lanka, because he feared

persecution there.  The Adjudicator held, on the basis of Section 17

(1) of the 1971 Act, that the applicant's destination appeal could

succeed only if he could show that there was a country or territory,

other than Sri Lanka, to which he could and should be removed.

 

        On 24 September 1982 the General Union of Eelam Students

certified that the applicant was a member of that organisation and an

active participant in its activities.  The applicant appealed from the

Adjudicator to the Immigration Appeal Tribunal, which dismissed his

appeal on 18 November 1982.   The applicant applied for judicial

review of the Tribunal's determination, contending that the scope of a

destination appeal included the opportunity to appeal against a

destination on the grounds of a fear of prsecution at that

destination.

 

        On 14 October 1983 the High Court rejected the applicant's

application for judicial review.  The judge held that it would be

highly desirable if it were possible to construe the 1971 Act in such

a way as to give persons in the position of the applicant a right to

raise their claim to asylum before the appellate authorities.  The

judge held that such a result would:

 

        "certainly lead to a situation where it could clearly

        be seen that this country, in relation to its appellate

        code for dealing with immigrants, was observing its

        international obligations (under the Geneva Convention

        and New York Protocol relating to the Status of

        Refugees and under the European Convention on Human

        Rights) and, what is more, it would enable a matter of

        very considerable importance in the world today to

        be properly considered by an independent body, which

        would result, in my view, in a situation which could

        accord with what those responsible for the administration

        of immigration legislation would like to see".

 

Nevertheless, he concluded that the clear language of the 1971 Act

precluded such an opportunity.

 

        The applicant appealed from this decision to the Court of

Appeal, which dismissed the appeal on 16 July 1984.  The Court found

the terms of the 1971 Act unambiguous and therefore declined to

determine whether the 1971 Act was inconsistent with the Convention

Relating to the Status of Refugees or the European Convention on Human

Rights, since those instruments would be relevant only as an aid to

the interpretation of the statute if it were ambiguous.

 

        The applicant sought leave to appeal to the House of Lords,

but on 8 November 1984 the judicial committee of the House of Lords

refused leave to appeal.  Under normal circumstances, on the completion

of the appeal process under domestic law, the applicant would have

become liable to actual deportation following the judicial committee's

decision of 8 November 1984.  However, the respondent Government have

stated that, in view of a review of their policy, no Tamils who

expressed fear of persecution in Sri Lanka were being removed there

from the United Kingdom even if their applications for political

asylum had been refused.  As a result of this policy review on 20 May

1985 the Government announced the granting of exceptional leave to

remain for six months for Tamils in these circumstances.

 

        The applicant did not apply for such leave but it was granted

to him on 10 February 1986 and the deportation order made on 15 April

1982 was revoked.  Subsequently the applicant has been granted a

further period of exceptional leave for twelve months, expiring on

10 August 1987.

 

The applicant's summary of the political situation in Sri Lanka

 

        The applicant has made detailed submissions relating to the

situation of Tamils in Sri Lanka, drawing upon various reports,

including the report of the International Commission of Jurists

"Ethnic Conflict and Violence in Sri Lanka" published in 1981, and

the subsequent report by the same body "Sri Lanka, A Mounting

Tragedy of Errors" published in March 1984, the Report of the United

States Department of State on Human Rights Practices for 1983,

published in 1984 and the summary statement of Amnesty International's

current human rights concerns in Sri Lanka dated January 1984.

Reference is also made to the conclusions of the Berlin Administrative

Court in a decision of 19 April 1984, a report of the Swiss Federal

Police and to reports in the national and international press.  These

reports may be summarised as indicating a mounting pattern of civil

unrest and disturbance.  This is traced from the election of the Sri

Lanka Freedom Party in 1970, which implemented various measures which

advanced the position of the Sinhalese population.  During this

administration's tenure from 1970 to 1977 the new constitution, of

1972, came into force, which designated Sinhalese as the country's

official language.  A quota system on the basis of race was imposed to

regulate admissions to Sri Lanka, and Buddhism (the religion of the

Sinhalese majority) was recognised as the official religion.  A number

of Tamils who had recently emigrated from India to Sri Lanka at the

time of independence (in 1948) were not granted citizenship of what

was then Ceylon, and the Tamils' representation in the legislature was

accordingly reduced.  The principal Tamil political party, the TULF,

adopted a policy of separation of the Tamil areas from Sri Lanka and

the creation of a separate State of Tamil Eelam, whilst denouncing the

use of force.

 

        A further response to the legislative measures and

intermittent communal violence between the Sinhalese and Tamil

populations was the banding together in 1977 of certain disaffected

Tamil youths in a group called the Liberation Tigers of Tamil Eelam,

explicitly committed to the establishment of a separate State by armed

force.  Other, similar groups have subsequently been formed under

different names and these groups are together collectively referred to

as the Tamil Tigers.

 

        Communal violence arose in August and September 1977 following

the election of the present United National Party Government.

However, it was four years later, in August 1981, that by far the most

serious outbreak of communal violence arose, which led to the

declaration of a state of emergency on 14 August 1981.  As a result of

these disturbances at least ten Tamils had been killed, numerous Tamil

shops and business burned and more than 5,000 Tamils had fled to

refugee camps according to the report of the International Commission

of Jurists referred to above.  It was within six months of these

events that the applicant applied for asylum in the United Kingdom,

which application was rejected on the basis that the Tamil and

Sinhalese populations in Sri Lanka were living essentially

harmoniously together.

 

        Further, extreme, communal violence occurred between 24 July

and 2 August 1983.  A state of emergency was declared on 18 May 1983,

and was prolonged on 18 July 1983.  On 23 July 1983 13 soldiers were

killed in an ambush by Tamil extremists, in reprisal for which members

of the army went on the rampage and killed 51 civilians in Jaffna.

On the following day, following the funeral of the 13 soldiers,

Sinhalese riots against Tamils broke out in several parts of the

country involving killings, assaults, arson and looting.  In response,

the Government imposed a curfew in Colombo and in the Northern

Province on 25 July 1983, and declared the following day a national

holiday.  It also announced the imposition of the death penalty for

looting and arson.

 

        On 25 July 1983 37 Tamil prisoners were killed by Sinhalese

co-prisoners in the high security Welikad Prison in Colombo.  Two days

later 17 more Tamil prisoners were killed in the same prison before

the security forces intervened.  The rioting extended to the cities of

Kandy, Gampola and Trincomalee, where a group of 130 naval personnel

went on the rampage, burning 175 Tamil houses, killing one Tamil and

wounding ten others before returning to their barracks.

 

        On 28 July 1983 the President announced the withdrawal of the

civil rights of representatives of the separatist movement.  The

overall extent of the damage resulting from the communal violence was

considerable: according to official statements 371 people were killed,

18,000 houses, 1,100 stores and other buildings were destroyed by

arson and 100,000 persons were rendered homeless.  On 25 August 1983

the German Embassy reported that 1,500 people had been killed and more

than 2,300 stores and small workshops were destroyed.  Forty thousand

people fled to the Tamil areas in the north of the island.  Tamil

sources report 2,000 killed and estimate the number of refugees at

150,000.

 

        The applicant points out that it was at the time of these

disturbances that the Immigration Appeal Tribunal held that it was not

open to the applicant to claim before the courts, as a matter of

English law, that he had a well-founded fear of persecution in Sri

Lanka, and should therefore not be removed there.

 

        The Sri Lankan Government have stated that during the first

few days of these disturbances the security forces did not intervene

with sufficient energy and that some members of the security forces

participated in the riots.

 

        Relations between the population of Jaffna, the principal

concentration of the Tamil population, and the security forces

seriously deteriorated following the widespread burning of the market

area of the town on the nights of 31 May and 1 June 1981.  Since that

time there has been a massive deployment of the army on the Jaffna

peninsula in an attempt to curtail the terrorist activities of the Tamil

Tigers.  The problem has been accentuated by the fact that the great

majority of both the police and army are Sinhalese who understand

neither the language nor the culture of the Tamils.

 

        The Sri Lankan Government's own admissions reveal that during

this period of disturbances a total of at least 90 individuals were

killed either by members of the State's own security forces or while

in the State's custody.  The state of emergency proclaimed on 18 May

1983 for the stated purpose of preventing violence during

Parliamentary by-elections is still in force.

 

        According to a report of Amnesty International, published in

December 1984, during the months of August, September and October 1984

several hundred Tamils were taken into army camps for questioning and

were detained.  There are widespread reports of arbitrary arrest and

detention, including the arrest and subsequent detention of the entire

young male population of the village of Valvettiturai amounting to

some 500 young men, of whom 350 were officially acknowledged to still

be detained some three weeks later.

 

        According to a recent report of the Swiss Federal Office of

Police the wholesale arrest and detention in military bases of males

aged 16 to 30 constitutes part of the policy of the Sri Lankan

security forces against terrorism.  The same report expressed the view

that the security forces are pursuing a policy of reprisals against

civilians in areas in which Tamil extremists have shown themselves to

be operating.  The report expressly concludes that it appeared that

the security forces, and in particular the army, cannot always be kept

under control.

 

        According to international press reports on 13 August and 6

September 1984, official sources confirmed that troops went on the

rampage in Mannar on 11 and 12 August 1984 killing five civilians.

 

        During the last few months of 1984 there were further reports

on attacks of members of the security forces, which gave rise to the

announcement on 29 November 1984 by the Minister of National Security

of the establishment of a "no man's land" extending 100 yards inland

and 100 yards into the sea along an area stretching from Mannar on the

north-west coast to Mullaittiavu on the north-east coast of the

island.  The Jaffna district was also declared a security zone with a

curfew from 4 pm. to 6 am. within which no one was allowed to own or

use private vehicles or bicycles without special police permission and

where householders would be required to submit the names of those

staying in their houses to the police.  The Minister also announced

the introduction of the concept of "collective responsibility"

throughout the island, wherever explosions took place or where

explosives were found.  All persons living in such an area would be

liable to resettlement in another area, according to a report

published in The Times on 30 November 1984.

 

        On 2 December 1984 the curfew was extended to five other

coastal areas following attacks by Tamil guerrillas on two fishing

villages and has subsequently been imposed in other Tamil centres.  On

10 December 1984 the security zone was extended to cover both the

eastern and western coastlines, extending for a distance of some 150

miles.

 

        The Minister for National Security declared in early October

1984 that repatriated Tamils would, if necessary, be arrested at

Colombo Airport.  The Swiss Government report confirms that the same

procedure of arrest and detention which was applied to Tamils within

the country applied to Tamils returning from abroad.  Amnesty

International reported on 24 May 1985 that a young man deported from

Switzerland after seeking asylum there, which was refused, was

arrested on 3 October 1983 and detained without trial until 14

December 1984.

 

        The Government of Sri Lanka have taken extraordinary powers to

deal with advocates of independence in Tamil regions, by the sixth

amendment to the Constitution which came into effect on 8 August 1983.

The amendment imposes severe penalties for any person who directly or

indirectly supports or otherwise assists or advocates the

establishment of a separate State within the territory of Sri Lanka.

Since the TULF was committed by its party conference resolution of

1976 to the establishment of an independent Tamil State, the immediate

consequence of this amendment to the Constitution was that all TULF

members of Parliament had to forfeit their seats.  The circumstances

are to be contrasted with the statement of the Home Office in its

letter of 27 May 1982 to the applicant's then solicitors that the TULF

was the officially recognised opposition party in Sri Lanka.

 

        Further, the Prevention of Terrorism (Temporary Provisions)

Act was amended in 1982 and currently remains in force indefinitely.

It provides the police with the power inter alia to order

detention "anywhere and subject to any conditions, for periods up to 18

months (renewable every three months)" of anyone who is "reasonably

suspected of being connected with or concerned in any unlawful

activity".  The Act also provides for entry, search and seizure

powers, prohibition orders concerning place of residence, employment

or travel and other activities for a period of up to 18 months and

restrictions on access to visits by the family and by lawyers.

 

        Furthermore, emergency rule is carried on under the

Emergency (Miscellaneous Provisions and Powers) Regulations made

under the Public Security Ordinance.  The current state of emergency,

which has been in force since 18 May 1983, allows the executive power

to arrest and detain indefinitely, without charge or judicial review,

those whom the Secretary to the Minister of Defence believes may act

in a manner prejudicial to national security.  Several members of the

United Nations' Human Rights Committee expressed concerns with various

aspects of the Prevention of Terrorism Act and the Emergency

Regulations during consideration of Sri Lanka's first report under the

International Covenant on Civil and Political Rights in August 1983.

 

The law and practice of the United Kingdom as summarised by the

applicant's representatives

 

        Entry into the United Kingdom and the terms and conditions on

which persons who are not British citizens may remain there are governed

by the 1971 Act, together with the Rules made by the Secretary of

State as to the practice to be followed in the implementation of the

1971 Act.  Section 4 of the 1971 Act gives the power to grant or

refuse leave to enter the United Kingdom to immigration officers, and

the power to give and vary leave to remain to the Home Secretary, and

the officials in the Home Office.  Section 12 of the 1971 Act provides

for adjudicators and the Immigration Appeal Tribunal which are

competent in certain specified circumstances to entertain appeals

against the refusal to grant leave to enter the United Kingdom (under

Section 13), or against the refusal to vary conditions of admission

(Section 14), or against the making of deportation orders (Section

15), or against the validity or content of directions for the removal

of persons from the United Kingdom (Sections 16 and 17).  An appeal is

to be allowed by an adjudicator (or on further appeal by the

Immigration Appeal Tribunal) if the appellant establishes that the

contested decision was not in accordance with the law or with any

immigration rule applicable to the case, or that it involved the

exercise of a discretion which should have been exercised differently

(Section 19).

 

        There are three distinct procedures established under the 1971

Act whereby a person subject to immigration control may be expelled

from the United Kingdom.  The first is by means of a deportation order

under Section 3 (5).  Such an order may be made in respect of someone

who overstays the time-limit initially imposed, or otherwise breaks a

condition attached to his leave to remain.  The second procedure is by

means of a deportation order under Section 6 (3), following the

recommendation of a court before which the person concerned has been

convicted of an offence punishable with imprisonment.

 

        The third procedure is by means of summary removal under

paragraphs 8 and 9 of Schedule 2 of the 1971 Act, which authorise the

removal of persons refused leave to enter and illegal entrants, which

second category includes anyone who has entered the United Kingdom in

breach of the immigration laws (Section 33).

 

        Section 24 makes it an offence, punishable with imprisonment,

for a person subject to immigration control to enter the United

Kingdom without leave, or to remain in the United Kingdom beyond the

time limited by the leave, or to fail to observe a condition of the

leave.  Thus a person who fails to observe a condition of his leave to

enter the United Kingdom may be deported in accordance with Section

3 (5) of the 1971 Act, without the intervention of any criminal court;

alternatively, he may be prosecuted under Section 24 of the 1971 Act,

recommended for deportation and then deported in accordance with

Section 3 (6).  There is a right of appeal against a decision to make a

deportation order under Section 3 (5), but no such right in respect of

a deportation order under Section 3 (6).

 

        Under the relevant provisions which applied at the time of the

applicant's entry into the United Kingdom, his entry was permitted

under paragraph 18 of the Statement of Immigration Rules for Control

and Entry: Commonwealth Citizens, HC 79, 25 January 1973, paragraph

18.  When the applicant applied for a further extension of his leave

to remain in the United Kingdom his position was governed by,

inter alia, paragraphs 87, 88 and 120 of the Statement of Changes

in Immigration Rules, HC 394, 20 February 1980.  Paragraph 88 provided

that, in order to qualify for extension of leave to remain as a

student, an applicant should produce evidence that he is able to

maintain and accommodate himself without working.  It appears to have

been under this provision that the applicant's request for an

extension of his leave to remain in the United Kingdom was refused on

8 August 1980.

 

        Paragraph 87 of the same rules provides that where a person is

a refugee, full account should be taken of the Convention and Protocol

Relating to the Status of Refugees, and paragraph 120 provided:

 

        "A person may apply for asylum in the United Kingdom on the

        ground that, if he were required to leave, he would have

        to go to a country to which he is unwilling to go owing

        to well-founded fears of being persecuted for reasons of

        race, religion, nationality, membership of a particular

        social group or political opinion ... "

 

It would therefore have been open to the applicant on that date to

apply for asylum, but, in view of the prevailing situation in Sri

Lanka at that time (prior to the eruption of violence against Tamils

in August 1981), such an application would have been unlikely to be

successful.

 

        On 19 February 1982, when the applicant was convicted for

remaining in the United Kingdom beyond the time permitted by his

leave, he was recommended for deportation, at which time paragraph 150

of the same rules referred to above applied.  This stated that a

deportation order would not be made in circumstances where an

applicant could apply for asylum in the terms set out in paragraph 120

(above).  However, the Magistrates before whom his case came were not

under a duty to consider the application of paragraph 150, in view of

the principle established in Ali v.  Immigration Appeal Tribunal

(1973> Imm AR 33 at 35) where the then Master of the Rolls stated:

 

        "In all these cases the proper person to consider a claim

        to political asylum is the Home Secretary.  It is not a

        matter for the court which recommends deportation."

 

        Accordingly, although the applicant could appeal against the

recommendation for deportation, it was not open to him to raise a

claim to political asylum in the course of that appeal.  This was

confirmed by the decision of the Court of Appeal in R v.  Nazari(1980>

3 All ER 880 at 885 - 886) which held that:

 

        "[T]he 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 ... it is for the Home Secretary

        to decide in each case whether an offender's return to his

        country of origin would make his compulsory return unduly

        harsh ...  The sort of argument which was put up in Nazari's

        case was one which we did not find attractive.  It may well

        be that the regime in Iran at the present time is unlikely

        to be favourable from his point of view ...

 

        The final decision is for the Secretary of State.  No doubt

        he will take into account the personal circumstances

        of each person whose case he is considering, and that

        will include the political situation in the country to

        which he will have to go if an order of deportation is

        made.  These are matters solely for the Secretary of State

        and not for the court".

 

        The applicant therefore abandoned his appeal against the

recommendation that he be deported.  When on 24 February 1982 the

applicant wrote to the Home Secretary asking for asylum, paragraph 150

of HC 394 applied.  However, the applicant had no right or opportunity

to appeal against the Home Secretary's decision since the deportation

order made against him was made on the basis of Section 3 (6) of the

1971 Act.  Although Section 15 (1)(a) thereof provides for a right of

appeal against a decision to make a deportation order under Section

3 (5) of the 1971 Act, in the applicant's case the Secretary of State

chose not to use the procedure created by Section 3 (5), but to use

instead the alternative procedure whereunder the applicant had no

right of appeal.

 

        On 27 April 1982 when directions for the applicant's removal

to Sri Lanka were served upon him, it was therefore not open to the

applicant to rely on paragraph 150 HC 394 when appealing against those

directions.  Section 17 of the 1971 Act provides that where directions

are given for a person's removal from the United Kingdom, following

the making of a deportation order, "he may appeal against the

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

different country or territory specified by him".  As the Court of

Appeal held in the present case, these words mean that there shall be

an appeal as to the choice of destination, but that that appeal is

without prejudice to the issue of whether there should be a

deportation at all.

 

        On 20 May 1985 the Home Secretary announced in Parliament a

new policy to deal with Tamils seeking asylum in the United Kingdom.

Any Sri Lankan Tamil who failed to qualify for leave to enter or

remain under the Immigration Rules, but expressed a fear of returning

to Sri Lanka was granted leave to remain on an exceptional basis if

there was reason to believe that he would suffer severe hardship if

returned to Sri Lanka.  Those who had been in the United Kingdom for

six months and whose departure had not been enforced would be granted

leave to remain for six months, whereupon their cases would be

reviewed on the basis of the new policy.  Others would be granted 12

months' exceptional leave.  On 30 May 1985 the Immigration Rules were

varied so that Sri Lankans could enter the United Kingdom only with

visas.  On 4 June 1985 the Home Office, in implementation of the new

policy, returned a Tamil to the Jaffna province of Sri Lanka.  The

Home Secretary stated in Parliament that this deportation was as a

result of a serious failure of communication by officials, since

refugee agencies were not first given an opportunity to make

representations on his behalf.

 

 

COMPLAINTS

 

        The applicant first complains that the decision of the Home

Secretary dated 15 April 1982 to direct that he be removed to Sri

Lanka, together with the connected facts and circumstances, including

the applicant's imprisonment, amount to a violation of Article 3 of the

Convention, since the applicant was liable to be subjected to torture

and serious ill-treatment in Sri Lanka if returned there.

 

        Secondly the applicant maintains that the United Kingdom acted

in breach of its obligations under the Convention in failing to afford

him an effective remedy before a national authority against the Home

Secretary's refusal to grant him asylum and against the decision to

direct that he should be returned to Sri Lanka.  The applicant submits

that this breach was made manifest in the decision of the adjudicator

to refuse to consider, during the course of the applicant's appeal

against the making of the directions for his removal to Sri Lanka, the

strength of the applicant's claim that he would be subjected to

torture or inhuman or degrading treatment if returned to Sri Lanka.

 

        With regard to Article 3 of the Convention

 

        The applicant contends that Article 3 of the Convention prohibits

the compulsory return of an asylum seeker to a country in which there

are serious reasons for believing that he will be subjected to

treatment in violation of that provision.  It also prohibits the

practice of detaining such an asylum seeker in prison, for breach of

immigration law only, denying him asylum without the right to any

effective remedy against that decision, and exposing him to continuing

fear that he may at any time be returned forcibly to a country in

which there are serious reasons for believing that he will be

persecuted.

 

        The applicant refers in this respect to the case-law of the

Commission as well as to a variety of instruments adopted within

the Council of Europe in relation to refugees including 11

Recommendations, two Resolutions and the Declaration on Territorial

Asylum of 17 November 1977.

 

        The Commission's case-law supports his contention in a series

of decisions commencing with that in Application No. 984/61, X. v.

Belgium, Dec. 29.5.61, Collection 6 p. 39 and culminating with

Application No. 10308/83, Altun v. the Federal Republic of Germany,

Dec. 3.5.83, D.R. 36 p. 209.  Furthermore, the Commission's case-law

has been endorsed by numerous academic writers.

 

        The applicant acknowledges that there is some support in the

Commission's early case-law for the proposition that Article 3 is not

infringed until an asylum seeker is actually removed to the territory

in which he is liable to be persecuted (e.g.  Application No. 984/61

supra).  The applicant contends that the corollary of such reasoning

would be that the Commission could only be potentially successfully

petitioned by the applicant when the very event occurs which is liable

to deprive him of any opportunity to make the application, or in which

the application will cease to be of practical utility.  The applicant

submits that the Commission's decision in Application No. 984/61 (supra)

cannot be taken to imply that the Commission must remain inactive

until the point arises at which its intervention becomes otiose.

 

        The applicant invokes the Commission's power to intervene in

this respect contained in Rule 36 of the Rules of Procedure, which the

applicant relies upon.  The Commission itself has acknowledged, in a

different context, that "if an individual claims that the execution of

an expulsion measure taken against him may violate the Convention, a

remedy without suspensive effect is ineffective" ( No.7465/76,

Dec 29.9.76, D.R. 7 p. 153).  The applicant therefore submits

that the Commission should exercise the power under Rule 36 of the

Rules of Procedure to indicate to the United Kingdom that it is

desirable to refrain from removing the applicant to Sri Lanka pending

the final determination of this application or the grant of asylum to

the applicant or until it is safe for the applicant to return to

Sri Lanka, whichever occurs the sooner.

 

        The Commission's power to review the conclusion reached by the

Home Office that the applicant has failed to satisfy the Secretary of

State that he has a well-founded fear of individual persecution

remains to be examined.  The applicant submits that the present is a

case where the competent authorities of the member States do not enjoy

a margin of discretion in the determination of factual issues and

their implications.  Furthermore, the Home Office decision was based

upon little or none of the material which is now before the Commission,

and hence cannot bind the Commission, in view of the Commission's

obligations under Article 19 of the Convention "to ensure the observance

of the engagements undertaken by the High Contracting Parties".

 

        The Commission's case-law emphasises the objective nature of

the test to be applied as to whether or not there are "serious reasons

to believe" or "serious reasons of fearing" that the person concerned

will be subjected to treatment in violation of Article 3, which is the

terminology used by the Commission in its case-law.  The terminology

emphasises the objective nature of the test to be applied.  This

approach is further reflected in the Commission's practice to consider

as relevant the opinions of the representative of the office of the

United Nations High Commissioner for Refugees, as in Application Nos.

8581/79 and 6102/73 (not reported).

 

        In the case of the present applicant, the office of the United

Nations High Commissioner has supported the application to the United

Kingdom authorities.   The representative in London of the United

Nations High Commissioner participated in the proceedings before the

Immigration Appeal Tribunal for the purpose of supporting the

application there, although the Tribunal does not appear to have

invited him or any other party to advance submissions on the merits of

the applicant's claim.  The standpoint of the office of the United

Nations High Commissioner for Refugees in general with regard to the

return of Tamils to Sri Lanka was expressed in a statement issued to

all Governments in May 1984, which concluded that the situation in Sri

Lanka was so serious that Tamils could not, in principle, be returned

unless it was established beyond doubt that an individual was opposed

to returning solely for reasons of personal convenience.

 

        The applicant's second submission is that the treatment which

he has received in the United Kingdom following his request to be

granted asylum has amounted to a violation of Article 3 of the Convention

independently of any violation of the same Article which may arise by

reason of his deportation to Sri Lanka.  To this end the applicant

refers to the fact that following his request to be granted asylum he

was kept in detention until 6 September 1982 (for a period of more

than eight months) although the only offence of which he had been

convicted was an offence under the 1971 Act for which he had been

sentenced to imprisonment for fourteen days.  The applicant adds that

on his release from prison he was denied an opportunity to take

employment to support himself and continues to be denied any such

opportunity, and that his application for asylum was denied even

before he had time to submit a letter through his solicitor setting

out the grounds of that application.  He also complains that the Home

Office's response failed to deal with the points made on his behalf

but referred to extraneous matters, and that he has been denied the

opportunity to challenge that decision before an independent national

authority and has lived under the threat of that decision to deport

him, made in 1982, and the fear of its implementation at any instant,

subject only to the exhaustion of his unsuccessful applications to the

English courts and his redress before the Commission.  Further, in

common with other members of the Tamil community, he has been made

aware by the Home Secretary's statement of 20 May 1985 that it is the

policy of the Home Office to return Tamils to Sri Lanka.

 

        The applicant recalls that another asylum seeker found the

fear of being returned to his country of origin so intolerable that he

committed suicide even though he enjoyed a right of appeal denied to

the applicant in the present case (No. 10308/83, Altun v. the Federal

Republic of Germany, supra).

 

        In the present case the applicant invites the Commission to

conclude that the treatment to which he has been subjected,

particularly in the state of insecurity in which he has been placed,

amounts to degrading treatment within the meaning of Article 3 of the

Convention.  He refers in this respect to the Commission's decision on

the admissibility of Application No. 9330/81, Bulus v.  Sweden, Dec. 1.1.84

(to be published).  In that case the applicant complained of the

conduct of the Swedish authorities in imprisoning him for four days

and in leaving him in a state of anxiety by reason of the Swedish

Government's proposal to return him to Syria, whence he had come as a

refugee.  The Commission there found that the application was

admissible.  Consistency demands that the Commission should reach a

similar decision in the present case, particularly since the period of

imprisonment was longer in this case than in the Bulus application

(supra) and the applicant in this case was not entitled to appeal

against the decision to take him into custody, when Mr.  Bulus had such

a right.

 

        With regard to Article 13 of the Convention

 

        For the reasons set out above the applicant contends that he

has been prejudiced by measures allegedly in breach of the Convention,

and mainly by the decision to deport him to Sri Lanka.  For the

reasons set out in the above analysis he had no right of appeal

against the recommendation for his deportation on the ground that he

had reason to fear persecution in Sri Lanka.  Nor had he any right at

all to appeal against the decision to make a deportation order against

him.  Nor did he have any right to challenge the making of directions

for his removal to Sri Lanka on the grounds that he had a well-founded

fear of persecution there.  Hence he had no remedy against the alleged

violation of the Convention.

 

        It is of no avail that the applicant could have invoked his

fears of persecution in the course of an appeal to an adjudicator

against the Home Secretary's refusal on 8 August 1980 to vary the

applicant's leave to remain in the United Kingdom.  This decision was

taken one year and eight months before the decision about which the

applicant now complains, and hence could not have been taken with

reference to the facts about which the applicant complains to the

Commission which have arisen since the date of that earlier decision.

 

        Just as there was no judicial means to secure an effective

remedy within the meaning of Article 13 (by contrast with the position

in eg Application No. 8244/78 Uppal v.the United Kingdom, Dec. 2.5.79,

D.R. 17, p. 149 at para. 157 and Application No. 8118/77 Omkarananda

and others v.  Switzerland, Dec. 19.3.81, D.R. 25 p. 105 at para. 119),

there is equally no administrative remedy.  The Commission's case-law

establishes that such relief must exhibit certain characteristics if

it is to be considered "effective".  These include notably the

requirement of independence which was recognised in the Klass case

(Eur.  Court H.R., Klass and others judgment of 6 September 1978,

Series A No. 28) as also in the case of Silver and others (Eur.  Court

H.R., Silver and and others judgment of 25 March 1983, Series A No.

6).

 

        In the latter case, an opportunity to petition the Home

Secretary was not an "effective remedy" since:

 

        "As the author of the directives in question, (the Home

        Secretary) would in reality be judge in his own cause."

 

The applicant submits that similar reasoning would apply in the

present case, and the opportunity to write to a Member of Parliament

requesting reconsideration of the Home Office decision would equally

not amount to an effective remedy.  A further inadequacy of a renewed

request to the Home Secretary is illustrated in the present case by

the reply which the applicant received to the request for asylum which

he made.  The Home Office's reply to the applicant's former solicitors'

letter dealt with a matter extraneous to the applicant and concluded

that the applicant had no well-founded fear of individual persecution,

which is not the criterion of the Geneva Convention, nor of the

relevant paragraphs of the Immigration Rules.

 

        The applicant points out that his contention as to the

interpretation of Article 13 reflects the terms of Recommendation R (81)

16 of the Committee of Ministers of the Council of Europe on the

harmonisation of national procedures relating to Asylum, Article 5 of

which provides:

 

        "There shall be provision for an appeal to a higher

        administrative authority or to a court of law against

        the decision of the asylum request.  Failing that there

        shall at least be an effective possibility of having

        the decision reviewed."

 

A similar standard is reflected in Conclusion No. 8 (XXVIII) on the

Determination of Refugee Status adopted by the Executive Committee of

the Programme of the United Nations High Commissioner for Refugees.

 

        The applicant also relies on the Commission's decision on the

admissibility of Application No. 9330/81, Bulus v.  Sweden (supra),

which the Commission declared admissible.  In that case the point at

issue was whether Article 13 guaranteed a further remedy at the

enforcement stage of the expulsion decision, which had previously been

examined in two instances.  In the present case by contrast, the

applicant had no right to appeal aginst the decision to make a

deportation order, following the recommendation of the Magistrates, no

right to raise the issue of asylum in any appeal against the

Magistrates' decision and no right to raise the issue of asylum in the

course of an appeal against the making of directions for his removal.

 

Conclusion of the applicant's submissions

 

        The applicant therefore requests the Commission to find that

he has been the victim of violations of Articles 3 and 13 of the

Convention and calls upon the Commission to give an indication to the

United Kingdom in accordance with Rule 36 of the Rules of Procedure

that it is desirable to refrain from removing him to Sri Lanka pending

the final determination of the application, to grant to the applicant

asylum, or until it is safe for the applicant to return to Sri Lanka,

and equally that it is desirable to afford the applicant an effective

remedy before a national authority, pending the final determination of

this application, or the grant of asylum, or until it is safe for the

applicant to return to Sri Lanka, whichever occurs the sooner.

 

        However, in his further submissions of 4 July 1986 the

applicant indicated that, in view of the leave to remain in the

United Kingdom which he has now been granted, his complaint based on

Article 3 of the Convention has been met in substance.  He therefore

states that on receiving confirmation that the concession of leave is

not conditional on his making a formal application for leave,

entailing an abandonment of a claim to asylum, the applicant will

formally withdraw his complaint based only on Article 3.  The applicant

maintains his complaint based on Article 13 of the Convention.

 

 

 

 

PROCEEDINGS BEFORE THE COMMISSION

 

 

        The application was introduced on 17 May 1982 and registered

on 18 May 1982.

 

        On 10 June 1982 the single member of the Commission assigned

to the application as Rapporteur made a preliminary examination of its

admissibility and requested the respondent Government to submit,

pursuant to Rule 40 (2) (a) of the Rules of Procedure, certain

information concerning the grounds for the refusal of the applicant's

request for political asylum.

 

        The information was submitted by the respondent Government on

30 June 1982.  On 17 July 1982 the Commission commenced its

examination of the admissibility of the application and decided,

pursuant to Rule 42 (2) (a) of the Rules of Procedure, to bring the

application to the notice of the respondent Government and to request

further information concerning the nature of the political activities

of the Tamil Liberation Organisation in the United Kingdom, the

treatment of similar cases to that of the applicant, the question as

to whether it was possible to consider the removal of the applicant to

an alternative destination apart from Sri Lanka.

 

        The respondent Government submitted this information on 20

September 1982, and the applicant submitted his comments in reply

thereto on 7 January 1983.

 

        The Commission had resumed its examination of the state of

proceedings of the application on 17 December 1982 on receipt of the

decision of the Immigration Appeals Tribunal in the applicant's case.

The Commission resolved that, in view of the suspensive effect of the

domestic remedies which the applicant was pursuing, the application

should be adjourned until the conclusion of those proceedings.

 

        On 23 July 1984 the applicant's representative informed the

Commission that the applicant's appeal to the Court of Appeal had been

dismissed on 17 July 1984.  On 3 August 1984 the applicant requested

the Commission to invoke Rule 36 of the Rules of Procedure, and to

indicate to the respondent Government that the applicant should not be

removed from the United Kingdom to Sri Lanka until the determination

of his application before the Commission.  The single member of the

Commission acting as Rapporteur, having resumed his examination of the

application, decided on 12 August 1984 to request the respondent

Government, pursuant to Rule 40 (2) (a) of the Rules of Procedure, to

inform the Commission whether, and if so when, it was planned to remove

the applicant to Sri Lanka in the light of the political developments

in that country since the original deportation decision of 1982, and

with reference to the remarks of Mr.  Justice Wolf in the High Court

decision of 14 October 1983 as to the non-availability of a court

review in the United Kingdom of the merits of the applicant's claim to

asylum.

 

        On 4 September 1984 the respondent Government informed the

Commission that there were no plans for the removal of the applicant

from the United Kingdom and that the respondent Government was

reviewing the position with regard to the return of Tamils to Sri

Lanka.

 

        On 9 November 1984 the applicant notified the Commission that

his application for leave to appeal to the House of Lords had been

refused on 8 November 1984, and that thereby the domestic legal

remedies were exhausted.  On 23 November 1983 the respondent

Government notified the Commission that they would give prior notice

to the Commission of any proposal to deport the applicant.  The

Commission resumed its examination of the application on

8 December 1984 and took note of the respondent Government's

above-mentioned letter, and decided to adjourn its examination of the

admissibility of the application pending notification from the

respondent Government of the outcome of the policy review referred to,

or the receipt of notice of a proposal to deport the applicant.

 

        On 22 August 1985 the applicant submitted supplementary

observations (summarised above) together with a further request for

the application of Rule 36 in respect of his possible deportation to

Sri Lanka.

 

        On 18 October 1985 the Commission resumed its examination of

the application and decided to invite the respondent Government to

submit written observations on its admissibility and merits pursuant

to Rule 42 (2) (b) of the Rules of Procedure.

 

        On 11 February 1986 the respondent Government informed the

Commission of the announcement made on 20 May 1985, and of the

revocation of the deportation order made against the applicant and the

decision to grant him exceptional leave to remain in the United

Kingdom for six months.  In these circumstances the respondent

Government suggested that no observations on the application might be

required.

 

        This letter was communicated to the applicant's

representatives on 26 February 1986 who were invited to make any

comments which they considered appropriate.  On 5 March 1986 the

applicant submitted his comments.

 

        On 13 March 1986 the Commission resumed its examination of the

application and decided to invite the respondent Government to submit

written observations on the admissibility and merits of the

application with particular reference to the matters raised in the

applicant's letter of 5 March 1986.  The respondent Government's

observations were dated 11 June 1986 and the applicant's observations

in reply were dated 4 July 1986.

 

        On 3 December 1986 the respondent Government informed the

Commission of negotiations which had taken place between the parties

relating to the possible resolution of the applicant's complaint under

Article 3 of the Convention.

 

        On 11 December 1986 the Commission resumed its examination of

the application and decided to adjourn this examination.

 

        On 29 January 1987 the applicant's representatives informed

the Commission, in connection with the respondent Government's letter

of 3 December 1986, that the respondent Government had there indicated

that the grant of exceptional leave to remain disposed of only one

part of the application, that is the complaint based on Article 3

alone.  The "main complaint" remained, based upon Articles 3 and 13

together, that the applicant had not had an effective remedy before a

national tribunal.

 

SUBMISSIONS OF THE PARTIES

 

        The respondent Government

 

        The submissions of the respondent Government are confined to

the question of admissibility only, and are divided into three

sections, concerning the facts of the present application, the

domestic law and practice, and questions going to the admissibility

of the application.

 

The Facts

 

        Save for the following matters referred to, the respondent

Government do not dispute the facts as presented in the application.

 

        The respondent Government refer first to the fact that the

applicant was first admitted into the United Kingdom on

9 September 1977 for a course of study, on condition that he left the

United Kingdom at the end of his studies and would not take

employment.  They submit that from February 1979, if not earlier, the

applicant formed the intention to remain in the United Kingdom,

whether or not he was given leave to remain under the 1971 Act.  They

refer, in support of this contention, to the fact that the applicant

was convicted on 17 July 1979 for working in breach of his conditions

of stay, the record of his poor attendance at his chosen course of

study, which has been submitted to the Commission, the applicant's

failure to attend the appeal hearing against the refusal on 8 August

1980 of further leave to remain in the United Kingdom as a student

because he (correctly) feared the outcome of the hearing, and the

applicant's deliberate evasion of immigration control by overstaying

his leave to remain for which he was arrested on 27 January 1982 and

convicted on 19 February 1982.  Furthermore, when the applicant was

interviewed by an official of the Immigration Nationality Department

of the Home Office on 16 March 1982 whilst detained at Ashford Remand

Centre, he stated that he "did not feel like" returning to Sri Lanka

on discovering that he was unable to complete his studies and that he

was reluctant to return there because of the poorer circumstances in

which he would have to live there.

 

        The respondent Government accordingly contend that the

applicant's claim to be a refugee must be considered in the light of

his immigration history and the fact that his application for asylum

was only made after his conviction for overstaying, and following four

and a half years' residence in the United Kingdom.  Nor, in the

respondent Government's contention, was there any apparent reason

relative to events in Sri Lanka why the applicant should apply for

asylum at that particular time, and the Government submit that the

timing of his claim suggests that it was a tactical device to prolong

his stay in the United Kingdom.

 

        The applicant's request was nevertheless carefully considered

by the Home Secretary, but it appeared that members of the applicant's

family had taken part in political activity in support of Tamil

candidates in Sri Lanka without suffering any harrassment from the

authorities and that the applicant's own political activities in the

United Kingdom were so minimal as to make it highly unlikely that they

had come to the notice of the Sri Lanka authorities.  In these

circumstances the Secretary of State was not satisfied that the

applicant's case gave rise to circumstances in which it could be said

that the applicant had a well-founded fear of persecution in Sri Lanka

for the purposes of the 1951 United Nations Convention on the Status

of Refugees.

 

        With regard to the applicant's immigration status during his

period in the United Kingdom, this may be summarised as follows:

 

        -   Between 9 September 1977 and 9 September 1979 the

        applicant had leave to remain in the United Kingdom as a

        student.  He applied for an extension of that leave, which

        request was refused on 8 August 1980.

 

        -   The applicant appealed from this refusal and by virtue

        of Section 14 (1) of the 1971 Act could not be required to

        leave the United Kingdom while that appeal was pending.

        The appeal was eventually dismissed on 2 September 1981

        when the applicant became liable to be deported from the

        United Kingdom as an overstayer.

 

        -   The applicant was convicted as an overstayer on

        19 February 1982 and recommended for deportation;  he

        was accordingly detained under para. 2 of Schedule 3

        of the 1971 Act with a view to his deportation.

 

        -   On 27 April 1982 notice of the Secretary of State's

        decision to deport the applicant together with directions

        for his removal to Sri Lanka were served on the applicant,

        which would normally have resulted in his removal to

        Sri Lanka.  The subsequent uncertainty was caused by the

        various appeals and applications initiated by the applicant

        thereafter, i.e.:

 

        (a) an appeal to the Adjudicator under the 1971 Act

        against the direction that he be removed to

        Sri Lanka (dismissed on 14 July 1982);

 

        (b) the present application to the Commission made on

        14 July 1982;

 

        (c) an appeal to the Immmigration Appeal Tribunal under

        the 1971 Act against the Adjudicator's dismissal of his

        destination appeal (dismissed on 18 November 1982);

 

        (d) the application for judicial review of the scope of

        the destination appeal as heard by the Adjudicator and the

        Immigration Appeal Tribunal (dismissed on 14 October 1983);

 

        (e) an appeal to the Court of Appeal against the

        unsuccessful application for judicial review (dismissed

        on 16 July 1984);

 

        (f) petition for leave to appeal to the House of Lords

        against the decision of the Court of Appeal (dismissed on

        8 November 1984).

 

        The applicant was not removed from the United Kingdom

following the dismissal of his final appeal since the Government's

policy with regard to returning Tamils to Sri Lanka was under review

in view of the circumstances in Sri Lanka at that time.  On

20 May 1985 the Government announced a new policy in respect of Tamils

who expressed a fear of returning to Sri Lanka, although an application

for asylum had not been made or not been made successfully;  such

persons were granted six months' exceptional leave to remain in the

United Kingdom.  Such leave was ultimately granted to the applicant on

10 February 1986, the delay being caused by the large number of Tamils

whose cases had to be covered under the terms of the announcement.

The original period of exceptional leave has now been extended to a

further twelve months' exceptional leave which will expire no earlier

than 10 August 1987.

 

        Furthermore, it is open to the applicant to make a further

application for asylum before the expiry of the special leave, and

were such an application to be refused, the applicant would have a

right of appeal against that decision under Section 14 of the 1971 Act

to the independent appellate authorities (Adjudicator and Immigration

Appeal Tribunal) established under the 1971 Act.

 

Domestic law and practice

 

        The respondent Government submit first that, had the applicant

sought asylum as a refugee at any time between his arrival in the

United Kingdom on 9 September 1977 and 8 August 1980 (the date on

which his application for an extension of leave was refused by the

Secretary of State) his application would have attracted a right of

appeal under the provisions of the 1971 Act.  Furthermore, during such

an appeal procedure, the applicant would not have been removed from

the United Kingdom.  Had the applicant sought asylum as a refugee

following the expiry of his leave, and before his arrest for

overstaying, and had such a request been refused, the applicant would

have been served with a notice of intention to deport as an overstayer

(under Section 3 (5)(a) of the 1971 Act) and the applicant would have

enjoyed a substantive right of appeal under Section 15 of the 1971

Act.  Hence the applicant could have applied for asylum, and, in the

event of refusal, exercised an appeal under Section 15 of the 1971 Act

in respect of a notice of intention to deport, at any time during the

nearly four and a half years that he was in the United Kingdom, from

9 September 1977 until his arrest as an overstayer on 27 January 1982.

 

        The respondent Government acknowledge that the applicant had

no right of appeal against the merits of the decision of the Secretary

of State to accept the recommendation of the Magistrates' Court for

deportation following the applicant's arrest and conviction for

overstaying.  Nevertheless, the applicant did have open to him an

appeal from the recommendation of the Magistrates' Court that he be

deported.  The applicant initially exercised this right of appeal, but

expressly abandoned his appeal on 25 March 1982, having lodged his

application for political asylum.

 

        The applicant contends that the right of appeal against

deportation recommendation was nugatory in the light of the decision

of the Court of Appeal in R against Nazari and Others (1980> All ER

880).  The respondent Government disagree.  They submit that the

effect of the Court of Appeal's decision as it applies to the

applicant was not so rigid as to preclude altogether the possibility

of a successful appeal, although the decision acknowledged that the

nature of political systems operating in other countries was not

normally a matter for the courts, but one for the Home Secretary to

consider when determining whether it would be unduly harsh to an

accused to act on the recommendation and make a deportation order.

 

        In that case Lawton L.J., giving the judgment of the court,

indicated certain guidelines to be applied in deciding whether or not

a recommendation for deportation should be made, but stressed that

these were only guidelines.  He went on to describe the evidence

relating to the possible consequences for the appellant in that case

in the event of his deportation as "unsatisfactory" and stressed that

it was essential that proper evidence should be before the court

concerning the consequences of such a deportation.  The respondent

Government submit that such evidence would be worthless if the court

was wholly unable to resist making a deportation recommendation in

circumstances where the evidence suggested that an applicant would be

at risk of serious harm in the destination country.

 

        In addition Lawton L.J. suggested that the nature of the crime

and its seriousness were factors which would have to be taken into

account in deciding whether or not a deportation recommendation was to

be made, as well as taking into account the fact that the appellant in

that case would have to serve a four-year prison sentence before the

deportation issue could become live and in that time the political and

other circumstances in the country of destination might change.  These

factors combine to suggest, in the submission of the respondent

Government, that the courts are prepared to consider the relevant

circumstances which an appellant may face if a recommendation of

deportation is made and implemented, and hence that an appeal against

the recommendation of the Magistrates that the applicant be deported

cannot be considered as being devoid of all possibility of success.

 

        The respondent Government also explain in their submissions

how they intend to deal in the future with asylum applications from

persons who, like the present applicant, have leave to remain in the

United Kingdom which has expired.  Such an application would, as at

present, be considered very carefully.  If the application were

refused notice of intention to deport on the ground that the applicant

was an overstayer would be served under Section 3 (5)(a) of the 1971

Act, thereby attracting the right of appeal under Section 15 of the

Act.  In the course of such an appeal the applicant would be able to

make representations to the appellate authorities (Adjudicator and

Immigration Appeal Tribunal) concerning his claim to be a refugee.

 

        The respondent Government would, save in exceptional

circumstances, be prepared to proceed on this basis so as to attract

these rights of appeal even in cases where the applicant had been

convicted of overstaying and recommended for deportation, provided

that the application for asylum was made before the deportation order

was actually made.  In such cases hitherto the applicant for asylum

has had no means of appeal and would have been in the same

circumstances as the applicant in the present case.  By these

administrative measures, the Government would ensure in such cases

that no overstayer who claimed asylum would be removed without a

chance of having a decision to refuse asylum reviewed by an

independent tribunal.

 

        However, the Government do not consider it appropriate to

proceed on this basis where a person has been convicted and

recommended for deportation and where the application for asylum is

made only after the deportation order has been made and the person is

therefore liable to be removed at any time.  Given the opportunity to

seek asylum with the right of appeal before the making of a deportation

order and the fact that any application for asylum, whenever made,

would always be very carefully considered, the respondent Government

consider that the interests of finality make it reasonable that a

person in these circumstances be removed without a further avenue of

appeal being opened to him.

 

Admissibility

 

        The respondent Government contend first that the applicant can

no longer claim to be a victim for the purposes of Article 25 para. 1

of the Convention.  They refer to the revocation of the deportation

order and the granting to the applicant of leave to remain in the

United Kingdom and contend that they have thereby removed any

uncertainty concerning the applicant's position, and enabled him to

renew his asylum application in such a way as to attract a right of

appeal in the event of its refusal.  The applicant is no longer liable

to be removed from the United Kingdom and an application by him for

leave to remain as a refugee can be made at any time before the expiry

of the 12 month period of leave which he still enjoys.

 

        The respondent Government refer to the Commission's case-law

to the effect that, before an application can be declared admissible,

it must be shown that the claim to prejudice exists.  This view is

supported by No. 7706/76, Dec. 5.10.77 (unpublished), where the

applicant complained of the revoked decision to deport him to Ghana

and of his detention and treatment pending the decision on his

deportation and on his claim for political asylum and of the

procedures adopted in deciding those matters.  The applicant

originally submitted that his deportation to Ghana would be contrary

to Article 3, and that the admissibility of this claim had been

conceded by the revocation of the deportation order by the respondent

Government.  The Commission held that the applicant was no longer

under any liability to be sent to Ghana and that his complaint was

accordingly manifestly ill-founded.  The respondent Government contend

that the present case is wholly comparable.

 

        In addition, the respondent Government submit that the

applicant has failed to exhaust domestic remedies for two, separate,

reasons.

 

        First, the applicant failed to make his application for asylum

until after his arrest on 27 January 1982.  At that time he had been

in the United Kingdom for almost four and a half years prior to the

recommendation that he be deported, during all of which time he had

the opportunity to make a claim for asylum attracting a right of

appeal.  The respondent Government submit that the applicant cannot

rely on his own failure to take advantage of that opportunity while it

was still available to him to argue now that he has exhausted all

available domestic remedies in relation to his claim for asylum.

 

        In the second place, the respondent Government argue that the

applicant has failed to exhaust domestic remedies by having abandoned

his appeal against the decision of the Camberwell Green Magistrates'

Court of 19 February 1982 to recommend his deportation.  This appeal

was abandoned on 25 March 1982, approximately a month after the

applicant had made his application for asylum.  The applicant contends

in this connection that an appeal to the Crown Court against the

recommendation on deportation would not have been an effective remedy

because he would not have been able to argue his case to be considered

as a refugee.  While the respondent Government concede that the court

could not have considered an application for political asylum,

nevertheless the applicant's circumstances were significantly

different from those of Nazari (supra) in that he had been convicted

of a less serious offence than that appellant, did not face an

immediate term of imprisonment in the United Kingdom, and had made a

formal application for asylum which was being considered by the

Secretary of State.  In view of the guidelines set out by Lawton L.J.

in the Nazari case (supra) the respondent Government submit that the

applicant could have contended in an appeal to the Crown Court that it

would be more appropriate that no recommendation for deportation be

made, thus enabling the asylum application to be considered on its

merits, and in the event of its being refused, enabling the applicant

to appeal to the appellate authorities under Section 15 of the 1971

Act.

 

        The respondent Government contend that, had such arguments

been made on appeal, the recommendation to deport might well have been

substantively reconsidered;  accordingly, the applicant should have

pursued this appeal which would have provided an effective and

sufficient remedy before a national authority and in failing to do so

he has failed to comply with the requirements of Article 26 of the

Convention.

 

        In the further alternative, the respondent Government contend

that the applicant's claim under Article 3 is in any event manifestly

ill-founded.  In this connection the applicant makes four principal

complaints by reference to which he contends there is a violation of

Article 3 in his case.  These concern:

 

        1.  The compulsory return of an asylum seeker to a country

        in which there are serious reasons for believing that he

        will be subjected to treatment contrary to Article 3;

 

        2.  The detention of an asylum seeker in prison for a breach

        of immigration law only;

 

        3.  The absence of a remedy against a refusal of asylum;

 

        4.  The exposure of an asylum seeker to the continuing fear

        that he may at any time be returned forcibly to a country in

        which there are serious reasons for believing that he will

        be persecuted.

 

        With regard to the first complaint the respondent Government

point out that the deportation order in the present case was only made

after the applicant's application for asylum had been fully considered

and refused.  The applicant was not therefore an "asylum seeker" at

the time the deportation order was made, and it is not the practice of

the Government to remove asylum seekers pending consideration of their

application.  However, a person whose application for asylum has been

refused cannot continue to be regarded as an "asylum seeker".

 

        With regard to the complaint concerning detention, which

lasted from February 1982 until 6 December 1982, in the applicant's

case this had an objective justification in the light of the

applicant's two convictions under the 1971 Act and in view of his

imminent deportation, which gave the applicant a motive for attempting

to evade the authorities which he had done in the past.  In these

circumstances the matters complained of do not attain the degree of

seriousness contemplated by Article 3 of the Convention.

 

        With regard to the complaint concerning the absence of a

remedy against a refusal of asylum, had the applicant sought asylum

prior to his arrest as an overstayer, he would have had such an

appeal.

 

        Finally, with regard to the continuing fear of imminent

removal which the applicant contends he was subjected to, this was

more imagined than real because, as the applicant's advisers were well

aware, so long as there was an appeal pending in the various appellate

authorities and courts in the United Kingdom, the Government, in

pursuance of their customary practice, would not remove the applicant

from the United Kingdom.  After November 1984, when the applicant's

application for leave to appeal to the House of Lords was refused,

Tamils who expressed a fear of being returned to Sri Lanka were not

being removed there even if their applications for asylum had not been

successful, owing to the review of Government policy then undertaken.

Subsequently, neither the applicant nor his advisers took steps to

regularise his position following the announcement of 20 May 1985

granting six months' special leave, but no steps were taken to remove

the applicant, and he was granted special leave on 10 February 1986.

 

        Hence the uncertainty and delay during this protracted period

has largely been caused by the applicant's own appeals and

applications which were instigated at a time when he knew that his

application for asylum had been refused and that he was otherwise

liable to be removed if those proceedings were unsuccessful.  In

addition, the applicant has now been allowed to remain for a further

period, and he may apply for further leave, together with a right of

appeal against any refusal.  In these circumstances, the respondent

Government contend that the applicant's complaint under Article 3 of

the Convention is manifestly ill-founded.

 

 

        The Applicant

 

        The applicant points out first that the respondent Government

have confined their observations to questions of admissibility only,

and have not addressed the question of the merits of the application

despite the Commission's request for observations on this topic.

Hence the respondent Government have still failed to say whether, or

on what grounds, the United Kingdom claim that it is in conformity

with the Convention to deny the applicant an effective remedy against

the decision dated 15 April 1982 to deport him to Sri Lanka.

 

        The applicant's replies to the three arguments on admissibility

submitted by the respondent Government may be summarised as follows:

 

As to whether the applicant can claim to be a victim under

Article 25 para. 1 of the Convention

 

        The respondent Government first announce in their observations

a change in the applicant's status and in the procedure to be followed

in future to deal with similar applications for asylum.  They contend

that by reason of these changes the applicant can no longer claim to

be a victim of a violation of the Convention.

 

        It appears from the changes now proposed by the respondent

Government that they are persuaded that it is at least desirable, in

the context of the Convention, to relieve the applicant of the

continuing fear of deportation to which he has been exposed since

15 April 1982 and "to ensure in such cases that no overstayer who

claimed asylum would be removed without a chance of having a decision

to refuse asylum reviewed by an independent tribunal".  The applicant

points out that the respondent Government have twice granted the

applicant a status for which he has not applied, namely a status of

exceptional leave to remain in the United Kingdom, and this despite a

letter of 5 February 1986 stating that if the applicant wished to

remain beyond August 1986 he must make a formal application to this

effect.  No such application has been made.  Further, the change in

Government policy does not appear to have been notified to a wider

public, by changing the Immigration Rules or by Parliamentary answer

or otherwise.

 

        The applicant hence understands that the Government are

granting him exceptional leave to remain until at least 10 August 1987

without formal application and thus without requesting the Home

Secretary to depart from the Immigration Rules and without thereby

abandoning his claim that he is and has been since February 1982

entitled to remain as a refugee.  The applicant expressly requests the

Commission to obtain the clarification and confirmation of the

respondent Government on this particular point.

 

        If such a change in the applicant's status is confirmed, the

applicant would be able to withdraw his complaint based on Article 3

of the Convention, although it would leave unaffected his claim based

on that provision read in conjunction with Article 13, that he is

entitled to an effective remedy before a national authority against

the decision dated 15 April 1982.

 

        The concession made to the applicant does not rectify the

breach of Article 13 of the Convention which the applicant has

suffered since it is irrelevant that it is now open to the applicant

to make a fresh application for asylum and to appeal against any

refusals.  Such an appeal would be based on the facts and law existing

at the time of the refusal and not on the facts existing in February

1982 which were central to the claim for asylum then made.  Moreover,

it would proceed on the basis that the applicant's claim for asylum

made in 1982 was in the Government's words "a tactical device to

prolong his stay in the United Kingdom".

 

        Nor was the opportunity to seek asylum at another time a

relevant consideration.  The respondent Government do not claim that

the applicant would have enjoyed a right to appeal against the refusal

to grant asylum had such an application been made earlier.  The

respondent Government merely point out that, as a matter of

administrative practice, the relevant administrative authority would

have exercised its discretion to use a procedure attracting a right of

appeal rather than that used in the applicant's case which involved no

appeal.  Hence the respondent Government state that if the applicant

had sought asylum prior to his conviction his application would, as a

matter of administrative practice, have been dealt with on the basis

that a refusal of asylum would have resulted in the service on the

applicant of a notice of intention to deport rather than the immediate

making of a deportation order.  Under the terms of the 1971 Act, the

service of a notice of intention to deport results in a right of

appeal under Section 15 of the 1971 Act.  At best this is a precarious

opportunity for appealing, because it depends on the exercise of a

discretion unregulated by published rule.

 

        In addition, the opportunity to apply for asylum at a time

when an appeal would have been available would not avail the

applicant.  The situation in Sri Lanka was relatively calm between

September 1977 and August 1981 and during the majority of this period

the United Kingdom maintained a policy of not granting asylum to

Commonwealth citizens.  For both these reasons the applicant had no

cause to apply for asylum until, at the soonest, shortly before his

arrest.

 

        The basis of the applicant's complaint under Article 13 is

therefore the question whether the applicant had an effective remedy

when he needed it.  He contends that this was not the case.

 

        The need for an effective remedy against the decision taken on

15 April 1982 is further illustrated by the fact that that decision was

evidently influenced in some measure by reports from the college which

the applicant had attended, and a report of 22 March 1982 written by a

junior civil servant who had interviewed the applicant.  The first of

these reports is irrelevant to the question whether the applicant had

a well-founded fear of persecution in 1982, and the second report

contains errors and prejudicial inferences.  The applicant submits

that his claim for asylum should not have been determined by reference

to these reports without his having had an opportunity to challenge or

even see them.

 

        In addition, the leave offered to the applicant is precarious

and could be revoked or varied without inhibition.  The exceptional

nature of the leave deprives the applicant of the benefits endowed by

the Geneva Convention on the Status of Refugees including the

Convention travel document and his period of residence in the United

Kingdom from 15 April 1982 to 11 February 1986 will be disregarded for

such purposes as naturalisation.

 

        In addition, the concession will not affect the decisions of

the English courts that a person in the  position of the applicant is

not entitled to appeal against a decision to deport him to a country

in which he claims that he has a well-founded fear of persecution.

 

Hence the applicant is still able to claim to be a victim of a

violation of the Convention in view of the informal nature of the

announcement of the policy change and its consequential precarious

status.  The respondent Government's announcement is imprecisely

worded and it is not clear who may fall within the "exceptional

circumstances" in which it is proposed to deport an overstayer who has

applied for asylum without any opportunity of a hearing under Section

3 (6) of the 1971 Act notwithstanding the concession which is

generally to apply in such circumstances.  Furthermore, under the new

policy the Home Office is not to rely on Section 3 (6) of the 1971 Act

only in the case of those convicted of overstaying, and not in the case

of those convicted of any other offence, including immigration

offences, however minor.

 

        Hence the only aspect of the circumstances which apply to the

applicant which has changed is that an administrative directive has

been given that, of the two alternatives of proceeding against a person

who has remained beyond the time allotted to him for his stay in the

United Kingdom and for the making of a deportation order, the Home

Office will prefer the procedure under Section 3 (5)(a) of the 1971

Act to that of a prosecution under Section 24 of the 1971 Act,

followed by a decision to make a deportation order under Section 3 (6)

of the 1971 Act, which does not carry a right of appeal.

 

        For these reasons the applicant submits that the prejudice

that he has suffered still exists and that he has been denied an

effective remedy against the decision dated 15 April 1982 and has been

offered, at best, the prospect of a different remedy against a

different decision.  The status now conferred on him of exceptional

leave to remain presupposes that he has no claim to remain within the

rules and does not qualify for the protection guaranteed under the

Geneva Convention.  The precedent established by this case as to the

limited availability of any review by the courts in the event of a

deportation order being made against a person in the applicant's

circumstances will stand.

 

        Nor can the present case be compared with the circumstances of

the Commission's decision on the admissibility of Application

No. 7706/76, Dec. 5.10.76 (published in 4 Digest of Strasbourg

Case-law p. 409).  There was no complaint of the denial of an

effective remedy in that case and no reliance was placed on Article 13

of the Convention.  That case involved the operation of Articles 5

and 6 of the Convention and hence had no bearing on the present claim

to an effective remedy against the decision to allow him asylum.

 

        Exhaustion of domestic remedies

 

        With regard to the complaint that the applicant has failed to

exhaust domestic remedies contrary to Article 26 of the Convention,

this is surprising in the light that the applicant has appealed to an

immigration adjudicator, to the Immigration Appeal Tribunal, and has

sought judicial review from the High Court, on appeal from the Court

of Appeal, and has applied to the Judicial Committee of the House of

Lords in the present application.  At each instance it was held that

it was not open to the applicant to raise his claim of alleged

persecution in the country of destination by way of the judicial

process.

 

        The respondent Government first contend that the applicant

could have applied for asylum between September 1977 and January 1982

and enjoyed an appeal from its refusal if it were refused, and has

thereby failed to satisfy the provisions of Article 26.  Such a remedy

would not have addressed the applicant's complaint which relates to

the treatment he has received in the period between April 1982 and

February 1986;  the respondent Government's argument is therefore

irrelevant.

 

        The respondent Government then contend that on 25 March 1982

the applicant abandoned his appeal in the criminal courts against the

recommendation made for his deportation on his conviction by the

Camberwell Green Magistrates' Court.  The applicant had then only

recently applied for asylum and could not know that his application

would fail.  The matters about which he now complains had not yet

occurred.

 

        In addition, the respondent Government criticise the

applicant's interpretation of the decision in R. v.  Nazari and others

(supra) and the summary that that case is authoritative for the

proposition that the question of political asylum cannot be raised by

way of an appeal against an order recommending deportation.  However,

the language criticised by the respondent Government in the present

case is taken verbatim from the judgment of the Court of Appeal in

the applicant's own case (R. v.  Immigration Appeal Tribunal ex parte

Murugandandarajah Kandiah at p. 4).

 

        In the applicant's contention the construction which the

respondent Government now seek to place on the Nazari case (supra) is

flatly contrary to that placed on the case by the Divisional Court and

the Court of Appeal in the proceedings brought by the applicant

himself.  The respondent Government cite no judicial or academic

authority whatever to support their construction of that case, and

such published reports as there are available support the applicant's

contention and not that of the Government (see 124 Solicitors' Journal

(1980) 359 and Halsbury's Laws of England 4th Edition abridgement 1980

para. 1506).

 

        The resolution of this question of English law is ultimately

not for the Commission, since according to the Commission's case-law

and that of the Court, the obligation on an applicant is to make

normal use of remedies that are likely to be effective and adequate

(No. 6840/74, Dec. 12.5.77, D.R. 10 p. 5 at para. 19).  As the

Commission held in Application No. 8378/78 (Dec. 14.5.80, D.R. 20

p. 168 at para. 170):

 

        "In the absence of any precedents to indicate that the

        Divisional Court would clearly have had the jurisdiction to

        consider the complaint as put by the applicant and thus that

        such a claim would have had some minimal prospect of

        success, the Commission finds that the remedy of judicial

        review would have been ineffective in the circumstances of

        the case."

 

        Applying the equivalent reasoning in the present case, the

remedy of an appeal against the recommendation of a deportation order

would not in the circumstances of the present case have been an

effective remedy for the applicant's complaint.

 

        Manifestly ill-founded

 

        Finally, the respondent Government contend that the

applicant's claim under Article 3 alone is manifestly ill-founded.

They do not contend that the claim under Article 13 read in

conjunction with Article 3 is manifestly ill-founded.

 

        As is set out above, the applicant is prepared to concede that

the decision now made to permit him to remain in the United Kingdom

until 10 August 1987, and to consider sympathetically any claim to

remain longer, meets the substance of his complaint based on Article 3

provided that the concession is not conditional upon a formal

application by him entailing an abandonment of a claim to asylum.

 

        On obtaining such confirmation, the applicant will withdraw

his complaint to the extent that it is based only on Article 3 of the

Convention.

 

THE LAW

 

1.      The applicant first complains that his exposure, as an asylum

seeker, to the continuing fear that he may be returned forceably to a

country in which there are serious reasons for believing that he will

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

together with the decision so to return him, and his continuing

detention in prison on the basis of a breach of immigration law alone,

together with the denial of an effective remedy against a refusal of

asylum constituted a breach of Article 3 (Art. 3) of the Convention.

 

        Article 3 (Art. 3) provides:

 

        "No one shall be subjected to torture or to inhuman

        or degrading treatment or punishment."

 

        The respondent Government contend that the applicant has

failed to exhaust domestic remedies, first because he failed to make

his application for asylum until after his arrest on 27 January 1982,

which arrest affected his status and the subsequent appeal procedures

available to him, and secondly because the applicant abandoned his

appeal against the decision of the Camberwell Green Magistrates' Court

of 19 February 1982 to recommend his deportation.  The respondent

Government contend that the applicant could have submitted in an

appeal to the Crown Court that it would be more appropriate that no

recommendation for deportation be made in order to enable an asylum

application to be considered on its merits and, in the event of its

refusal, the applicant would then have been able to appeal to the

appellate authorities under Section 15 of the 1971 Act.

 

        The applicant contends that the invocation by the Government of Article

26 (Art. 26) of the Convention is in itself unreasonable in the light of the

fact that the applicant has appealed to an immigration adjudicator, to the

Immigration Appeals Tribunal, has sought judicial review from the High Court,

and then on appeal to the Court of Appeal, and has thereafter applied to the

Judicial Committee of the House of Lords in the context of the present

application.  At each of these appeals and instances it was held that it was

not open to the applicant to raise his claim of alleged persecution in the

country of destination by way of the judicial process.  With regard to the

first "remedy" invoked by the respondent Government, the applicant points out

that it would not have addressed his complaint, which relates to the treatment

he has received in the period between April 1982 and February 1986; an earlier

application for asylum than that which was made by the applicant would not

therefore have been a remedy for the matters which he brings before the

Commission.

 

        With regard to the fact that the applicant abandoned his

appeal against the recommendation of deportation he points out that

the case of R. against Nazari and others (1980> All ER 880) is

authority for the proposition that the courts are unable to consider,

even in the context of an appeal against a recommendation for

deportation, the risk which an intended deportee will run as a result

of political or other persecution in a country of destination.  In

this respect the applicant relies upon the terms of the judgment of

the Court of Appeal in his own application for judicial review (on

appeal).

 

        The Commission recalls that, in accordance with the terms of

Article 26 (Art. 26) of the Convention and its established case-law, the

obligation on an applicant is to make normal use of the remedies that

are likely to be effective and adequate for the complaints which he

seeks to bring before the Commission (No. 6840/74, Dec. 12.5.77,

D.R. 10 p. 5 at para. 19).  The remedies which the applicant is

thereby called upon to exhaust must therefore first relate to the

matters which he seeks to bring before the Commission.  In the

circumstances of the present case, it would appear that an application

for asylum which was lodged prior to the applicant's arrest would have

had to have been based on allegations of fact relating to the position

in Sri Lanka which are essentially different from those which the

applicant makes the subject of his application.  Accordingly an

earlier application for asylum would not have provided a remedy for

the matters about which the applicant now seeks to complain to the

Commission.

 

        The Commission has also held that the mere existence of doubt

as to the effectiveness of a particular remedy does not itself excuse

an applicant from the requirement to exhaust it.  However, this

obligation does not extend to a requirement that an applicant must

pursue appeals in the face of, and despite, settled precedent, the

effect of which is to restrict the availability of a particular

remedy, or to render it ineffective for the resolution of the

applicant's complaint.  In the present case the applicant abandoned his

appeal against the recommendation for his deportation imposed by the

Magistrates' Court.  However, in the course of his appeal from his

application for judicial review of the decision of the Immigration

Appeal Tribunal the Court of Appeal examined the case of R. against

Nazari and others (supra), which is the principal precedent as to the

scope of an examination of an appeal against a recommendation to

deport.  Notwithstanding the respondent Government's contentions to

the contrary, it appears that the Court of Appeal considered in the

context of the facts of the present case that the case of Nazari and

others (supra) was authority for the proposition that the issue of

political asylum was not one which could be raised by way of an appeal

against an order recommending deportation.

 

        The Commission recalls that its task is not to resolve

question of domestic law, but that, in the context of determining

whether or not an applicant has complied with the requirements of Article 26

(Art. 26) of the Convention, it must decide whether normal use of the

appropriate domestic remedies for the complaints under the Convention has been

made in the course of the proceedings in domestic jurisdiction. The Commission

finds, in the absence of any precedents to indicate that there would have been

a wider jurisdiction than that established in R. against Nazari and others

(supra) or that an appeal notwithstanding that decision would have had at least

some minimal prospects of success, that the applicant was not required in the

circumstances of the present case to pursue an appeal against the

recommendation for his deportation imposed by the Magistrates' Court. In this

respect the Commission recalls that the applicant did apply to the Adjudicator,

and subsequently to the Immigration Appeal Tribunal, and thereafter by way of

judicial review to challenge the decisions made in relation to his intended

removal from the United Kingdom.

 

        It follows that the applicant has not failed to comply with

the requirement of Article 26 (Art. 26) of the Convention.

 

2.      The Commission must therefore consider the applicant's

complaint under Article 3 (Art. 3) of the Convention relating to the initial

decision that he be removed from the United Kingdom.

 

        The Commission notes first that the applicant sought political

asylum in the United Kingdom as a result of his contentions as to the

political circumstances in Sri Lanka and the consequences as perceived

by him of his possible return there.  The right to political asylum is

not, however, amongst the rights and freedoms protected by the

Convention.  Nevertheless, as the Commission's established case-law has

consistently recognised, the removal of a person to a jurisdiction

where he has legitimate reason to dread treatment contrary to

Article 3 (Art. 3) of the Convention may give rise to an issue

engaging the responsibility of the removing State under Article 3

(Art. 3) of the Convention (No. 10308/83, Dec. 3.5.83, D.R. 36 p. 209).

 

        In the present case the applicant was served, on 27 April 1982,

with a notice by the Secretary of State of the latter's decision to

deport him to Sri Lanka.  The applicant contends that this decision,

coupled with the uncertainty which ensued in the subsequent period,

during which the applicant was pursuing domestic remedies to challenge

that decision, constituted a violation of Article 3 (Art. 3) of the

Convention.

 

        The respondent Government have contended that, in view of the

particular development of the facts of the present case, the applicant

can no longer claim to be a victim of a violation of the Convention

under the terms of Article 25 para. 1 (Art. 25-1) thereof.  They point

out in particular that the applicant's removal to Sri Lanka was

prevented during the course of his appeal proceedings, which lasted

until his petition for leave to appeal to the Judicial Committee of

the House of Lords, which was dismissed on 8 November 1984.  Following

this the applicant continued to be permitted to remain in the United

Kingdom and has since been granted special leave so to remain in the

light of the respondent Government's review of its policy with regard

to returning Tamils to Sri Lanka.  This review resulted from an

examination of the circumstances prevailing in Sri Lanka.

 

        The Commission notes in this context that the new policy of

not returning Tamils who express the fear of returning to Sri Lanka,

notwithstanding whether an application for asylum has been made or

indeed rejected, was announced.  Such persons were granted six months'

exceptional leave to remain in the United Kingdom and the applicant

was expressly granted such leave with effect from 10 February 1986.

That period of leave has since been extended for a further period of

12 months, and the respondent Government have expressly informed the

Commission, in the context of these proceedings, that the period of

exceptional leave which the applicant currently enjoys will expire no

earlier than 10 August 1987.  At the same time the respondent

Government point out that it remains open to the applicant to make a

further application for asylum if he so wishes.

 

        The respondent Government further point out that the applicant

is no longer detained, and has not been so detained for a considerable

period of time.  The respondent Government therefore contend that the

applicant's complaints to the Commission under Article 3 (Art. 3) of the

Convention have been substantially resolved.

 

        The applicant, for his part, submits that he has nevertheless

been exposed to the risk and threat of deportation in circumstances

which he contends would have been contrary to Article 3 (Art. 3) of the

Convention, and these circumstances were aggravated by his initial

imprisonment, and by the absence of a domestic remedy which would have

been effective for him to make his appropriate submissions about the

risks which such a deportation would entail.

 

        The Commission considers that the complaint concerning the

alleged lack of remedies should be examined under Article 13 (Art. 13)

of the Convention.  With regard to the complaint under Article 3

(Art. 3) it recalls its decision in Application No. 7706/76 (Dec. 5.10.76,

Digest of Strasbourg Case-law 4 p. 409) where the applicant complained

of a revoked decision to deport him to Ghana, which deportation he

contended would have involved exposing him to a violation of Article 3

(Art. 3) of the Convention.  The Commission recognises that, in

certain circumstances, the factual development in a case may give rise

to circumstances where the substantial grievance complained of by the

applicant is resolved in such a way that he may no longer claim to be

a victim of a violation under the Convention.  In the present case the

Commission recalls that, by virtue of the suspensive effect of the

domestic remedies which the applicant pursued in the United Kingdom,

he was in fact protected from the possibility of deportation during

the course of those proceedings.  The suspensive effect of those

proceedings may be itself an essential requirement for them to be

regarded as effective remedies for the purposes of Article 26

(Art. 26) of the Convention.  Furthermore, the applicant was subsequently

assured, in the context of the proceedings before the Commission, that

his removal to Sri Lanka would not occur during the course of his

domestic appeal.

 

        Subsequently, the applicant has been granted exceptional leave

to remain in the United Kingdom for a total period which has exceeded

five years since the Secretary of State's original decision for his

removal.  In these circumstances the Commission finds that the

applicant is not currently able to contend that he is at risk of

treatment contrary to Article 3 (Art. 3) of the Convention by virtue of his

imminent removal from the United Kingdom.  In this respect the

Commission recalls that the applicant's contention that he should be

granted asylum is not one which falls within the Commission's

competence, and that this issue is a matter in respect of which it is

open to the applicant to make a further application to the competent

authorities in the United Kingdom if he so wishes.

 

        Furthermore, the applicant's associated complaint, that he was

denied a remedy whereby the substance of his complaint of the risk of

his treatment in the event of his deportation could be assessed, has

also been resolved so as to provide a remedy with suspensive effect

for unsuccessful applicants for asylum whose leave to remain in the

United Kingdom has expired.

 

        In these circumstances the Commission concludes that the

applicant's complaint under Article 3 (Art. 3) of the Convention is

resolved in such a way that, in the particular circumstances of the

present application, he is no longer able to claim to be a victim

within the terms of Article 25 para. 1 (Art. 25-1) of the Convention.

It follows that this aspect of the applicant's application is

manifestly ill-founded within the meaning of Article 27 para. 2 (Art.

27-2) of the Convention.

 

3.      The applicant finally complains that he has been subjected to

a violation of Article 13 (Art. 13) of the Convention in the context of the

facts of his present application.  Article 13 (Art. 13) of the Convention

provides:

 

        "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."

 

        The Commission has already concluded that within the

circumstances of the present application the applicant can no longer

claim to be a victim of a violation of the substantive right to

protection from inhuman and degrading treatment and torture which he

alleged his deportation to Sri Lanka would engender.  The Commission

must now consider the extent to which the applicant may nevertheless

be able to claim to be a victim of a violation of the Convention in

accordance with Article 25 para. 1 (Art. 25-1) thereof in respect of

Article 13 (Art. 13) of the Convention.

 

        The Commission recalls its decision in Application No.

10473/83 (Dec. 11.11.85, unpublished) in the following terms:

 

        "Article 13 (Art. 13) guarantees a right to an effective remedy to

        everyone who claims that his rights or freedoms under the

        Convention have been violated.  However, this does not mean

        that there must exist a remedy in respect of every complaint

        as soon as an applicant invokes the Convention.  It is

        necessary that the complaints or alleged violations fall

        within the scope of the rights and freedoms protected by the

        Convention and the individual can claim to be a 'victim'

        within the meaning of Article 25 (Art. 25) of the Convention.

        Accordingly, Article 13 (Art. 13) of the Convention does not

        require a remedy in respect of an alleged violation which is to be

        regarded as incompatible with the provisions of the Convention

        within the meaning of Article 27 para. 2 (Art. 27-2) of the

        Convention."

 

        In as much as the applicant may seek a remedy in respect of

his claim to be granted political asylum in the United Kingdom the

Commission recalls that such a right is not specifically guaranteed by

the terms of the Convention.  It follows that the Commission's

examination of the applicant's present complaint must be in the

context of an assessment of the remedies which were available to the

applicant in respect of the complaints under the Convention which he

seeks to bring before the Commission.

 

        The Commission's task under the Convention is to examine the

facts of the application submitted to it.  Its task is not to examine

the operation of a system of national law in abstracto, but to decide

whether the facts which are the subject of an application reveal an

admissible allegation of a violation of the Convention.

 

        It is relevant in this context that the applicant was able to

take proceedings on a destination appeal and subsequently, by way of

judicial review with an appeal to the House of Lords.  These

proceedings did not offer the applicant the opportunity to have his

complaint of an alleged violation of Article 3 (Art. 3) of the Convention

examined by the English courts.  It appears that these remedies were

not effective for this complaint and so did not satisfy the

requirements of Article 13 (Art. 13) of the Convention.  Notwithstanding the

limited scope of these proceedings, as a practical fact and as a

matter of national law and practice they had suspensive effect upon

the decision to remove the applicant to Sri Lanka.  In addition,

although the applicant contends that he was not able to appeal against

the substance of the Secretary of State's decision to deport him to

Sri Lanka on the grounds that such deportation would have involved a

violation of the Convention and thereby bring his claim to political

asylum before the judicial authorities, the applicant has in fact been

granted special leave to remain in the United Kingdom.  Furthermore,

this decision was made in the light of the political circumstances in

Sri Lanka, and with reference to the contentions which the applicant

has submitted as to the risks which his deportation to Sri Lanka would

involve.

 

        The respondent Government acknowledge that the applicant had

no right of appeal against the merits of the decision of the Secretary

of State to accept the recommendation of the Magistrates' Court that

the applicant be deported following his arrest and conviction for

overstaying.  Nevertheless, the respondent Government have also

explained a change in their policy as to the procedure which is now to

be applied to persons who apply for asylum, after their leave to

remain in the United Kingdom has expired.  In this connection it is

recalled that one of the applicant's complaints is specifically that

he was deprived of any appeal on the merits of such a decision because

of his status as an overstayer at the time of his asylum application.

Under the new system, if an application for asylum is refused, the

Secretary of State's notice of intention to deport on the ground that

the applicant is an overstayer will be served under Section 3 (5)(a)

of the 1971 Act, with the result that a would be asylum seeker would

have the right of appeal under Section 15 of the 1971 Act.  In the

course of such an appeal to the Adjudicator and then to the

Immigration Appeal Tribunal such an asylum seeker will now be able to

appeal against such notice of intention to deport on the basis that it

would expose him to treatment contrary to Article 3 (Art. 3) of the

Convention. In consequence, the legal circumstances in which the

applicant found himself have been changed in such a way as to prevent

their recurrence both for him, or for other individuals.

 

        In view of these events the Commission concludes that, as a

matter of practical fact, the development in the circumstances of the

present application have been such as to resolve the substance of the

applicant's complaints.  In these exceptional factual circumstances

the applicant can now no longer claim to be a victim in respect of the

alleged absence of a remedy as required by Article 13 (Art. 13) of the

Convention for his allegation that his deportation would involve a

breach of Article 3 (Art. 3) of the Convention.

 

        It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

 

        For these reasons, the Commission

 

        DECLARES THE APPLICATION INADMISSIBLE.

 

Secretary to the Commission               President of the Commission

 

 

 

 

      (H.C. KRÜGER)                             (C.A. NØRGAARD)