Saravamuthu Sivakumaran, Navaratnasingam Vathanan, Vinasithamby Rasalingam, Vythialingam Skandarajah, Nadarajah Vilvarajah v. Immigration Officer, Heathrow

DETERMINATION AND REASONS

This determination is made in respect of appeals by five Sri Lankan Tamils against decisions by the respondent refusing them political asylum and removing them to Sri Lanka in February 1988.

Mr Riza appeared for the first appellant SIVAKUMARAN and the fourth and fifth appellants, Vythialingam SKANDARAJAH and Nadarajah VILVARAJAH, and Mr Blake for the second and third appellants respectively Navaratnasingam VATHANAN and Vinasithamby RASALINGAM. Throughout this determination I shall henceforth refer to the appellants by their numbers, appellant 1, 2 and so on. This is not necessarily the same order in which they have appeared in previous proceedings but I have followed this order because it is the order in which their appeals have been numbered in these appeals.

Mr Potts and Miss Gooch appeared for the respondent. I am greatly indebted to all the representatives for the assistance which they have afforded me in the presentation of these appeals. The UNHCR has not sought to be made a party to these appeals.

The appeals of the five appellants are allowed and I now proceed to set out my reasons.

Although there are individual differences in respect of each of the appellants concerned with their own respective backgrounds and individual experiences as well as points of law, which do not all affect all the appellants, the main ground of appeal depends upon my findings in respect of the bulk of the evidence which has been laid before me. I therefore think that it is more convenient to deliver one determination affecting all the appellants and dealing with the individual points where necessary rather than to deliver separate decisions in respect of some only of the appellants. I have set the determination out in such a way that it will help rather than hinder another Tribunal in dealing with the matter. Except where it is apparent and hopefully made clear by myself expressly that a point applies to some only of the appellants, my findings apply to each and every one of them.

Geography

Sri Lanka is an island some 300 miles long and 150 miles wide. The Tamil areas are mainly in the Northern 70-80 miles and concentrated around the Jaffna peninsular down the West Coast to Mannar which faces India (Tamil Nadu) 20-odd miles across the Gulf of Mannar and Palk Straits and decreasingly down the East Coast to Trincomale and Batticoloa. There is a central concentration mainly of Plantation Tamils around the tea growing districts and the University at Kandy some 50 miles from Colombo.

The total population is about 15 million of which 2.7 million is Tamil (including 8 million Plantation Tamils).

There is a single road to the North passing through Vavuniya and Elephant Pass. There are two ports at Kankesantura in the extreme North near to Pedro Point and at Mannar in the North.

Appellants' individual details:

First appellant

He was born on 12.5.66 at Point Pedro. He arrived from Dhaka in the United Kingdom on 13.2.87 along with 64 other Sri Lankans, having left Colombo in January and stated that he was in transit to Oslo. The immigration officer entertained doubts about his passport and the visa, and he was detained and examined later, at which point he said that he had decided to seek asylum in this country rather than, as originally intended, in Norway.

The Home Office made an initial decision on 16.2.87 that the appellant did not have a valid visa and was not entitled to claim asylum so entry was refused and he was told he had a right of appeal from abroad. Directions were issued on the same day for his return to Dhaka but as in this and the other four cases now before me, he remained in the United Kingdom until his appeal was finally disposed of by the House of Lords. In the meantime the appellant was interviewed again on 14.4.87 and a decision by the respondent was given in writing to the appellant dated 20.8.87 (page 686 of the bundle). Since the same form of ultimate rejection was served on all appellants I think that it is convenient at this stage to set this notice out in full:

"You applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of persecution in Sri Lanka for reasons of race, religion, nationality, membership of a social group or political opinion. The Secretary of State has further considered your application.

You said that it was too dangerous to stay in Sri Lanka. People were being arrested indiscriminately and killed by the security forces. You also said that you had been detained on three occasions between 1984 and 1985 and that you had been detained for three days after being arrested with your travelling companions on the way to Colombo. Lastly, you said your brother, Raja, had been shot by the Navy in 1984.

But it is noted that the experiences to which you refer were the result of civil disorder in Sri Lanka rather than persecution within the terms of the United Nations Convention relating to the Status of Refugees; and that your arrests were part of the army's general activities directed at discovering and dealing with Tamil extremists and that on each occasion you were released without charge after a short period. It is further noted that your brother was shot dead by the Navy when he failed to obey a lawful order.

The Secretary of State, having considered the individual circumstances of your case and in addition the situation in Sri Lanka, has concluded that you have not established a well-founded fear of persecution in Sri Lanka.

Since you do not otherwise qualify for leave to enter the United Kingdom the Immigration Service have been instructed to arrange your removal to Sri Lanka to which country you are returnable under paragraph 10 of Schedule 2 to the Immigration Act 1971."

Also in the meantime, and likewise affecting all the appellants, the Home Office had written to one of the instructing Solicitors on 2.3.87. Since a point of law turns upon the making of the decision and the notification of it and a preliminary point argued before me in respect of two of the other appellants is affected by this letter, I also now set this out in full (it is pages 119 and 120 in the bundle):

"SIVAKUMARAN AND OTHERS

We have been reconsidering the decision in the case of Sivakumaran and the other Tamils who arrived in the United Kingdom on Friday, 13 February. As you know, the Divisional Court granted leave to 59 of them to move for judicial review on 24 February. A considerable amount of time has now elapsed since the arrival of your clients in this country and there is bound to be a further passage of time before these cases are finally resolved. In these circumstances and in the light of the legal proceedings, the Home Secretary has decided that he should refer the cases of all the 64 Tamils to the UKIAS and make fresh decisions in relation to all of them in the light of all the relevant facts including any representations that UKIAS may make. More than two weeks have already gone by and I understand that UKIAS has already bee able to interview many of the applicants. As you know, the court made it clear when granting leave that it was important that all of these cases were disposed of as soon as possible. Since the position apparently is that UKIAS would normally expect to complete their enquiries within fourteen days and given the fact that interviews have already taken place, the Home Secretary will expect to receive UKIAS representations by Wednesday, 18 March. He will, of course, take account of any other representations that are received and expects that they too will be submitted by the same time. I would like to make it clear that the Home Secretary will, of course, consider each asylum claim individually on its merits and not take into account the circumstances of the Tamils' arrival.

In the meantime, I can assure you that none of the 64 Tamils will be removed before the making of the fresh decisions."

(The underlinings are mine).

He left behind a father who was a fisherman and brothers and sisters. He had watched his brother shot by the Sri Lankan Navy-he claims for no reason at all except that he was passing through a restricted area and after he was seen and heard to have put his hands up. I will return to certain aspects of this and heard to have put his hands up. I will return to certain aspects of this later. He originally claimed to have been interrogated 3 times and later he claims to have bee a member of the LTTE (Tamil Tigers) albeit a non-active service one.

His home was damaged during an air bombardment in October 1985 and his family had to move. His father made arrangements for him to leave the country and paid the costs. He further elaborated and commented upon the explanatory statement of June 1988 and additionally said that he actually had seen people being shot and their bodies burned.

There appears to be no evidence before me as to what has happened to this appellant since his return to Sri Lanka because his solicitors when they went there were unable to make contact with him.

Second appellant

This appellant was born on 8.7.70, near to Point Pedro. He arrived from Dhaka on 13.2.87 along with 64 other Sri Lankans and because some pages of his passport appeared to be missing he was required to submit to another examination at which he sought political asylum. Upon completion of the interview on 15.2.87 the case was referred to the Home Office and on 17.2.87 his application for asylum was refused and he was issued with a written notice with directions that he return to Dhaka. In the meantime further representations were received from the United Kingdom Immigrants Advisory Service which elaborated upon what he claimed had happened to him personally and what he had witnessed before he left Sri Lanka. He was re-interviewed on 23.4.87. the appellant had no employment in Sri Lanka having only just finished taking his ‘O' Levels at the end of 1986. His father had apparently mortgaged his shop to raise money for him to leave but in January 1987 his house was destroyed. He claims to have a brother who had claimed asylum in France, but was unaware of what had happened to his parents and siblings. A decision in the same terms as that given to the first appellant but dated 1.9.87 was handed to this appellant.

There is a further statement and letters taken by his Solicitors in Sri Lanka and dealing with what is claimed to have happened to him since his return to Sri Lanka in the February of last year, (affidavit by Mr Burgess, pages 812-815 (1) and (2) of the bundle). The first exhibit is the comprehensive statement of events from the arrival of this appellant back in Sri Lanka. Firstly he claims that he has had additional problems because the Immigration Department took away from him his identification card and lost it. This is not disputed. He claimed that upon arrival he was interrogated by a Sinhalese who was aggressive; because of the lack of identification card he has been unable to go to Jaffna to look for his family. According to a TV programme he saw they were caught in crossfire between LTTE and IPKR (Indian Peace Keeping Force) about 12 miles away from their village. The fourth appellant was shown on a TV programme as one of those members of LTTE who had surrendered. He claimed to have remained in touch with the fourth appellant until he went to Jaffna. The letters written by the appellant are in the bundles (pages 847-883). He claims that Sri Lankan Tamils are attacked from other direction firstly the IPKR, secondly the Sri Lankan army and thirdly the Sinhalese. He refers to a report by a Indian journalist who witnessed, he claims, maltreatment by the IPKF of Tamils in the North. He explains that he has been arrested whilst in Colombo and that life is very difficult there and yet without an identity card he cannot leave to go back to Jaffna. He relates that Tamil youths are found and detained and maltreated. As time went on, after the return of Mr Burgess to the United Kingdom, the arrest of Tamil youths in Colombo was intensified but he was still unable to leave and the JVP (The Peoples Liberation Front, a Sinhala Marxist Party), in the course of organising activities against provincial elections, threatened any voter with assassination and in particular put up posters ordering all Tamils to leave. The last letter from him is dated 1 December last year and indicated further intensification of activities by JVP as the date for the Presidenti elections neared. He said again that he wished to go to Jaffna at least to avoid the JVP Movement who has vowed that no Tamil should stay in Colombo but he was unable to do so.

Third appellant

This appellant was born on 23.9.61 at Mannar. He arrived in the United Kingdom from Bangkok. Because some pages of his passport had been removed he was further examined (in English at that stage and later in Tamil) and claimed asylum. The appellant was interviewed on 19.3.87. Having left the North of Sri Lanka he went to Colombo and thence for about 2 months to Bangkok. In the case of this appellant no decision was taken at all until 1.9.87 and this again is the same form as for the first appellant. According to the explanatory statement, upon receipt of the Secretary of State's decision the interviewing officer saw the appellant, asked him if he had anything to add but there is no evidence that the appellant had seen what the immigration officer had recorded him as saying; the interviewing officer then told him what the Secretary of State's conclusions were and refused him leave to enter, serving upon him the notice I have referred to. During the examinations of the appellant he said his house had been burned down, two of his brothers had been shot and another brother and two cousins had been arrested.

The appellant appears to have a number of fairly close relatives in this country. His father however is a retired farmer-he had to mortgage some of his land to raise sufficient money for the appellant to come here.

Because the appellant had lied for 2 years in Sri Lanka after his parents' premises had been destroyed the respondent obviously attached little importance to the appellant's claim that it was impossible to live safely in Sri Lanka.

On a number of later occasions the appellant has elaborated and explained further the record of what is recorded in the explanatory statement. He claimed that he had gone into hiding at the time his brothers were shot. He had been shot at by soldiers who came to the village. He said young men have a problem because when the military see them they are liable to arrest them, torture or even murder them and people therefore then to run away when they see soldiers: and it was what his brothers were doing when they were shot down. A further detailed statement appears in the bundle at pages 899 and 901. A further statement was taken by the Reverend Margaret Fankhauser of Switzerland who met with this appellant in Colombo in March of last year. The statement by each of them appears on pages 902-908. In summary this appellant explains the difficulties without an identity card which, as in the case of the second appellant, had been lost by the authorities in the United Kingdom. In fact he said that he was able to obtain a forged card which cost him Rs. 1,000. Shortly after arrival his brother, who was a Christian Pastor in Mannar, having read about his return in the newspaper came to Colombo, found him and took him back. One of his brothers had joined the LTTE. He had been compelled at gunpoint to pay money to them and he is regarded as a sympathiser and as such is at risk from Three Star. This organisation, as I understand it, is regarded as a sort of Quisling organisation; it is pro-IPKF and is otherwise known as the Eelam Democratic Liberation Front, a Tamil organisation. Because of this situation he returned to Colombo where he now stays in a mainly Moslem area. As to his forged identity document, he said he has so far been able to escape arrest on the numerous searches which are conducted by the police. The statement by the Reverend Dr Fankhauser is merely a repetition of what she has been told. Her own observations as to the need for documents and the way in which people live is generally corroborative of the other evidence as to what is happening in Sri Lanka. The Reverrend Fankhauser states that this appellant's brother, father and other relatives have been arrested by the IPKF and taken to the Camp at Illupakadavai and later released. In particular I observe in the statement she says that the appellant's father was told to inform the Indian troops of the whereabouts of his son (this appellant) whom he was suspect of hiding as they wanted to arrest him. She related an event on 15 March 1988 in which a relative of this appellant had bee arrested by the IPKF, beaten, his hands tied in front of him and then dragged over the ground until he was unable to stand up, suffering severe injuries. He was being questioned to give names of LTTE guerillas. She exhibited a letter which she received in which is related this man's release.

Fourth appellant

This appellant was born on 24.10.58 near Jaffana. He arrived in the United Kingdom on 11.6.87 with a Malaysian passport in the name of Rengasamy and a birth date recorded as 25.7.65. he sought entry as a visitor and said that he would be travelling on to Canada. After later examination it appeared that the photograph the passport had been changed. That this document, was forged has not been disputed. After further interviews the appellant was refused leave to enter in accordance with paragraphs 3 and 76 of the Immigration Rules, HC 169 and a notice served on him accordingly. When he was told he was going to be deported to Singapore he said that he was from Sri Lanka and he claimed asylum.

This appellant was interviewed on 17 June and at that stage it was recorded that he claimed that he was single, that his father was a doctor and his mother lived in Jaffna. Of his siblings a brother was a Lecturer at Jaffna University and two sisters were students at a private college living at home with their parents. The third one was a housewife living somewhere else in Jaffna and another brother was working in Saudi Arabia. He himself had a franchise to sell soft drinks and owned an electric printing press. The basis of his claim for asylum was that he was a member of the Tamil community and it was unsafe for him to remain in Sri Lanka due to government operations around Jaffana. He claimed that his home and business premises had been destroyed in the government shelling from Jaffna Fort on 1.4.87 and he lost most of his possessions. He had been arrested and assaulted.

The respondent formed the view that he left because his business had been destroyed but in later statements this was strongly contested and a much fuller statement was made (see pages 743-751 of the bundle). The appellant showed the injuries to his leg which he said were caused quite deliberately by the police who had arrested him and pushed him onto a barbed wire fence and stamped on him causing excruciating pain and considerable injury. This appellant explained how he had given a great deal more detail to the interviewing officer than is recorded. Among such matters he referred firstly to the bombing which was so intense that they used to hide in trenches. That became too dangerous when the Sinhalese army announced that anyone found hiding in the trenches would be treated as a terrorist and shot. The Sinhalese army started a major offensive from the south in 1987 which was unsuccessful. When the IPKF arrived he claimed there was more trouble from them in 4 days than the Sinhalese army had caused in 4 years. On the other hand the prospect of a return of the Sri Lankan army was to him horrifying in that the Sinhalese would imput separatist political opinions to all Tamil youth and there would be a massacre. He said that the shelling in 1986 was deliberately directed at civilian areas from the sea and from the camps; as well there was bombing from the air. It was known that the targets would only be Tamils, there being few or no Sinhalese living in the vicinity. His arrests, assault and detention were carried out by the police who were all Sinhalese and who were not only violent in language but also in action. He said that his attempts to leave Sri Lanka were frustrated until mid-1987 and he emphasized that the destruction of his business was not the reason for the departure although it certainly appears that he is saying that is precipitated it.

After this appellant's return to Sri Lanka in February last year, he wrote to his Solicitors (page 727 of the bundle) complaining that he had been arrested and tortured in Jaffna. He was interviewed when his Solicitors visited Jaffna and further statements obtained: they are all part of affidavits and exhibits in the bundle statements obtained they are all part of affidavits and exhibit in the bundle starting at page 721. As to the events after his return, he related that he was identified as being involved with the LTTE by a masked man, as a result of which he was detained, interrogated and severely beaten in an attempt to find out the names of LTTE men and the localities of weapons caches. He said he went so far as to tell them that he could not have had anything to do with the LTTE because he had been in England although he said he dared not say that he had applied for asylum. None of this made any difference-he was clubbed and struck and eventually lodged in a cell with other young Tamils: it had a concrete floor and no beds, no washing nor cleaning facilities. One LTTE boy of about 16 or 17 was hung upside down and beaten every day. Other techniques of interrogation such as the electric shock treatment were used by his captors and when they released an LTTE suspect they wold normally tell the Three Star organisation, leaving them to deal with the suspect. He was rescued after 2½ months by his family when his father managed to bribe his captor's Commander (IPKF) with a gold chain. He said a video film was taken of him and he understood later on that this was shown on television when it was claimed that he was a member of the LTTE who had surrendered.

On 20.8.87 the Secretary of State's decision to refuse asylum was received by the immigration officer and a letter to this effect handed to the appellant; this follows the same form as that in the case of the other appellants.

Fifth appellant

This appellant was born on 19.7.60 in Vavuniya. He arrived with the fourth appellant on 11.6.87 and likewise produced a forged Malaysian passport in another name, sought leave to remain as a visitor and was refused in the same way. Before he could be deported to Singapore or to Malaysia he also claimed asylum and was later interviewed and a decision was made on 20 August 1987 and the same type of notice of refusal was served upon the appellant on that day.

In the explanatory statement the appellant said he was single and his father was a Supermarket owner. He himself had been educated up to ‘A' Levels and then worked in the family business until 1987. His claim for asylum was that he was a Tamil and it was unsafe for him to remain due to government operations. He claimed to have been arrested, interrogated and struck. The family business had been looted and had therefore fled to a small village some miles away. He said that he went to Colombo and thence to Madras on his own passport and thereafter on the Malaysian passport.

Also, as in the case of the fourth appellant, statements recorded in the explanatory statement had been considerably enlarged upon and further statements, taken both in this country and Sri Lanka by the appellant's solicitors (pages 764 and 795 of the bundles). The appellant gives similar details regarding shelling and bombing, destruction of property and people by the Sri Lankan army and the death of a cousin in Kilinochchi at the hands of the army in 1986 and the complete destruction of their property in 1987. He gee details of detention on two occasions by the naval forces, both it seems in 1986. As to his parents he said the last he saw of them was on 29 March 1987 until on return to Jaffna he found his family were, as he said "OK", It appears that on his arrival back in Colombo he was detained briefly and questioned about PLOTE (another allegedly Quisling group) of which he said he had been a member before he left for England. He said that he is at risk of betrayal for his former membership of PLOTE; only two weeks after he got back he was accused of connections with the LTTE by the IPKF. Shortly afterwards he was caught up in a sweep where a number of others were identified by masked men and taken away.

The appellant made the journey to Colombo to see his solicitors through many checkpoints at which quite arbitrarily anyone can be arrested for being an alleged member of some separatist group. Generally speaking his point was I think that he had so far survived relatively unscathed by good fortune only.

One particular instance struck me as being significant if it is true is that related on page 787 of the bundle. The appellant was travelling on a bus which was commandeered by the Navy and seems to have been used in a Naval convoy as a sort of human insurance against attack by the LTTE. He saw passerby being shot from the buses by the Naval personnel travelling on the bus. The appellant's evidence of the activities of the IPKF and the Sri Lankan army around Paranthan and Kilinochchi seemed generally to bear out other evidence to which I will refer later (pages 790-792 of the bundle). He finishes up by stating that the death of his cousin could just as well have been his own death except for the fluke that on this particular occasion the cousin was near the shop and he was working in the fields instead of vice versa.

Thus each of the five appellants applied for asylum and were refused. None, except to a minor extent appellants 1 and 5, claim to have been active politically before leaving Sri Lanka or indeed since. Their claims rest on a fear of persecution as Tamils, particularly young Tamil males.

I am told by Mr Blake, and I do not think that it is disputed and is certainly borne out by the letter of 2 March 1987 from the Home Office, that following upon the proceedings for judicial review the original decisions, which were made in or about February 1987, were all set aside and fresh decisions were made in the same form, either on 20 August in relation to appellants 1, 4 and 5 or 1 September in relation to appellants 2 and 3. Particularly in relation to appellant 3 and perhaps with a little less assurance in relation to appellants 1 and 2, Counsel argue that whatever the result of the appeals might be on the substantive issue of asylum, they are entitled to indefinite leave to remain because the respondents have not established that they have complied with the provisions of paragraph 6 (1) of Schedule 2 to the Immigration Act 1971 having failed to give the refusal of leave within 12 hours after the conclusion of the examination. In relation to appellants 1, 4 and 5, an additional ground of appeal has been added, namely "the decision to refuse leave to enter with the consequence of removal to Sri Lanka is not in accordance with the law on the basis that, on return the appellant was reasonably likely to be subjected to inhuman treatment. Singh v IAT 1986 Imm AR 352 at 360 per Lord Bridge of Harwich".

The respondent has argued before me at a preliminary hearing on 6 January that I have no jurisdiction to hear the appeals in respect of appellants 4 and 5 because having entered on forged documents and having applied to remain as a visitor they were refused leave and the only appeal which they have is against that refusal from outside the country. That appeal would have to be dismissed in any event because the appellants were illegal entrants in terms of Section 13(4) of the Immigration Act. The decision, she argues, to refuse asylum attracts no think that, on the face of it, the argument had much merit; in any event in their letter of 2 March 1987 the Home Office had, on page 2, stated that they would not take into account the circumstances of the Tamils arrival. I decided that it would be better that I should give full consideration to this point and if, notwithstanding my initial reaction I felt that the argument was correct, there would be nothing lost by making that decision now. In fact I do not think that the point does have merit and I will deal with it more fully when I come to deal with the other points of law which arise in these appeals.

Apart form the technical points of law which have been raised, the principal submissions on behalf of the appellant are:

1.         There was a reasonable risk that the appellants would meet death or serious injury at the hands of the Sri Lankan armed forces or their agents (of the Sri Lankan Government I think) in the North of the country or detention or torture or destruction of homes, businesses, schools.

2.         That any of the above is the sort of injurious consequence contemplated in the dictionary definition of persecution.

3.         That set against the objective circumstances of Sri Lanka at the material time, there is a real likelihood that the injurious consequences would be on account of a Convention reason. It is not necessary, the appellants submit, that proof of motive of a would-be persecutor is part of the real risk test. It is not in dispute is: was that fear for a Convention reason and was it well-founded. As Mr Riza put it: since it really is not in dispute either that these appellants were all at risk if they returned to Sri Lanka, the kernel of the appeal is the question "Is there a risk that the persecution will be for a Convention reason?" And the particular reason is as a Tamil; whether that is a question of race, ethnicity or religion, or even possibly nationality or a mixture of such groupings matters not. I am not concerned with whether or not the appellants have been engaged in political activities themselves although in the case of the first and fifth appellants there is such a claim and possibly there is also in the case of the fourth appellant.

What Mr Riza is asking me to decide is as follows:

1.         Were the appellants refugees at the time of the decision, that is the decisions in late August/early September 1987?

2.         That the circumstances which led to those decisions have not since materially changed.

3.         That the respondent did not act in accordance with the law and/or the immigration rules, and

4.         If I do so find, that I should give directions in terms of Section 19(3) of the Immigration Act 1971 in order to give effect to the determinations, including that the appellants shall have leave to enter upon arrival. As an alternative to directions, if I am not minded to make them, that I should give appropriate recommendations.

I now turn to a consideration of the extensive evidence which has been laid before me of the conditions prevailing in Sri Lanka which, coupled with the personal experiences of each of the appellants, lead it is said to the likelihood of persecution. In my view I am entitled to take into consideration events which have happened after the decision and, indeed, after the appellants' return to Sri Lanka in order the better to assess whether what was predicted was an accurate prediction or not.

Background in Sri Lanka

The only evidence which I have of the situation in Sri Lanka is that provided to me by, or on behalf of, the appellants; the facts and circumstances upon which the Secretary of State acted in reaching his decisions or indeed any other information of which he has become aware subsequently has not been put before me. I observe from the judgment of Lord Keith of Kinkel in the judgment of the House of Lords in R v SSHD ex parte Sivakumaran and others, 1988 142 at p. 153 in an affidavit by Mr Potts that he claims to have taken into account reports of the Refugee Unit of his Department compiled from sources such as Press articles, journals and Amnesty International publications and also information supplied to hi by the Home Office and as a result of recent visits to Sri Lanka by Ministers. As Lord Keith went on to say:

"It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder amounting at times to Civil War. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them."

Again, as Lord Keith explained, the Secretary of State has in his letters of decision expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. I think that I should mention at this point, because it follows in Lord Keith's judgment, that although it is stated there that Counsel did not seriously maintain that any sub-group of Tamils such as the young males of the North were being subjected to persecution of any Convention reason, Counsel's position before me is that that was for the purposes of that appeal. The House of Lords did not and could not decide whether the appellants should have asylum on the facts but only whether or not the Secretary of State had applied the correct tests and approached his obligations in a correct manner.

It is open to me to decide the issue notwithstanding what Lord Keith has said. This is conceded by Mr Potts who agrees I think that consideration of that what has happened in the past is material for the purpose of assessing the prospects for the future and whether those prospects could be said to have been accurately forecast.

In the bundle of documents which have been laid before me and to which I have been referred, there are specifically the following:

1.         Minority Rights Group Report 1986.

2.            Numerous press cuttings and press articles.

3.         An affidavit by Dr Malcolm Anthony Rogers with numerous exhibits.

4.         An affidavit by Professor Manor.

5.            Amnesty International Reports for in particular 1988 but also earlier Reports.

6.         Country reports on human rights practices for 1987, prepared by the Department of State in 1988 by the US government (page 621 (a)).

7.         Reports by various bodies such as the Civil Rights Movement of Sri Lanka.

8.         Copies of Sri Lankan legislation, in particular:

(a)      Prevention of Terrorism Temporary Provisions (Act No. 8 of 1979)

(b)      Prevention of Terrorism (Temporary Provisions) Amendment Act (No. 10 of 1982).

(c)      Sixth Amendment to the Constitution, 8 August 1983.

(d)      Public Security Ordnance Regulations, January 18 1987.

(e)        An Indemnity Bill published on 15.6.88 which I am told is believed to be the text of an Indemnity Act which was passed by Parliament in December 1988.

Both Mr Blake and Mr Riza have taken me through or referred me to specific sections of these documents. I have in fact read all of them but I have paid particular regard to those references I have had my especial attention drawn to.

Two witnesses were called, both of whom had previously prepared affidavits which are also lodged with the documents. First of all there is the affidavit of James Gilmour Manor, who is Professor and Fellow of the Institute of Development Studies at the University of Sussex, and former Professor of Government at Harvard University in Cambridge, Massachusetts, the author of a number of works on South Asia and particularly on India and Sri Lanka, Editor of the Journal of Commonwealth and Comparative Politics. Professor Manor has also previously appeared as an expert witness, notably in the Federal Court of Boston Massachusetts (also in a case issue concerning the issue of Tamil refugees the decision on which is not known). Professor Manor has been in Sri Lanka on at least five separate occasions and speaks a Dravidian tongue, apparently not the same as, but of the same family as, that spoken by the Tamils in Sri Lanka. His affidavit is to be found on page 330 et seq of the bundle. Secondly Doctor Rogers, whom I have mentioned, also prepared an affidavit to which are annexed four bundles of exhibits and all these appear between pages 224 and 329 in the bundle. Dr Rogers of the British Refugee Council has been associated directly with the Tamils in South India and Sri Lanka since 1982 having started in South India upon his doctoral research, and has visited Sri Lanka twice in 1983 then again in 1985 and on the latest occasion in July 1988, when he went on a fact-finding mission with the approval of the Sri Lankan government in company with two members of the Danish Refugee Council and for the purpose of reviewing the UNHCR special programme of limited assistance for Sri Lankan refugees returning from Southern India and who is responsible for the Sri Lankan project.

Both these witnesses are accepted experts in their field. Drawing from their collective evidence I set out the historical chronology of what seemed to me to be relevant facts to a decision in these appeals. Thereafter I will focus on specific areas. If some examples are omitted from specific mention it is not that I have not remarked them but that the matrix on which my decision is based did not necessarily call for such an item to be specifically mentioned.

Turning now to the chronology:

1815 - Advent of British Rule.

1931 - Universal suffrage

1948 - Independence.

The Independence Constitution did not have the same entrenched protections for fundamental human rights which became the Westminster-style Constitutions which ushered in Independence in most of the rest of the Commonwealth. Indian Tamils were disfranchised.

1956 - Official Language Act.

Sinhalese language proficiency examinations were required for various positions. This created some Tamil truculence. Sinhalese is an Indo-European or caucasian language whereas Tamil is Dravidian. For one to learn the other is apparently difficult.

1957 - The Bandaranauyake-Chelvanauakam Pact

This was intended as a step to heal the breaches between Sinhalese and Tamil.

There were Tamil massacres in this year.

1958 - Further anti-Tamil demonstrations and delaying calling the army in to restrain the mobs.

1971 - The expansion of the army and an order to "get tough with the Tamils". The Education Bill was promulgated.

1972 - A new Constitution enshrining Sinhalese as the official language. The protection of minority rights under Section 9 of the original Constitution was abolished.

1975 - Tamil Eelam Party (TULF) formed on separatist mandate.

1977 - The United National Party, which is a Sinhalese Praty, won the elections which 140 seats to 17 seats for TULF. The elections were followed by further anti-Tamil demonstrations, particularly round Kandy. These were witnessed by Professor Manor. The behaviour of the army was said to lead to the formation of Tamil defensive groups.

1978 - A Presidential style Constitutions was introduced which was boycotted by TULF. Both Tamil and Sinhalese were decreed to be national languages but Sinhalese was the official one and Buddhism, which is the Sinhalese religion as opposed to Tamil which is Hindu, was made the State region. The Sri Lanka Freedom Party (SLFP) was formed on an anti-Tamil basis. Curfews were imposed.

1979 - The Prevention of Terrorism (Temporary Provisions) Act was passed.

The emergency regulations were said to have been directed at LTTE (Tamil Tigers).

1980 - Sri Lanka acceded to the International Convention of Civil & Political Rights

1981 - The District Councils which had been erected as a result of the Pact mentioned earlier are alleged to have been emasculated after pressure from Tamil extremists and there were further anti-Tamil riots and demonstrations.

1982 - Sri Lanka acceded to the International Convention on the elimination of all forms of racial discrimination. It passed the Prevention of Terrorism (Temporary Provisions) (Amendment) Act. It is alleged that Section 6 particularly was used predominantly against Tamils. President Jayawardene's term was extended and Parliament extended for a further 6 Years following a Referendum in December.

1983 - 18 May - a state of emergency was proclaimed which is still in force. On 23 July 13 Sri Lankan soldiers were killed in an ambush which it is said led to reprisal attacks in the North by the Sri Lankan army, and on the following day by anti-Tamil pogroms and on the day after that, massacres of Tamils in Wellikade Prison. Further communal riots on 29^th, which is known as "Black Friday" and on 30 July the proscription of JVP (Peoples Liberation Front) and extreme Sinhala Party and other Parties (SLCP and NSSP). The behaviour of Cyril Matthews, an MP and former Minister, who had made extreme racist attacks on Tamils in Parliame was witnessed by Professor Manor. He saw him directing a military group in government vehicles systematically attacking Tamils and Tamil properties. On 4 August the Sixth Amendment was passed prohibiting any advocacy of establishment of a separate State and providing punishments for breaches thereof this was said to be aimed at the Tamil Separatist Movement and it is alleged that it was designed to further exclude Tamils form effective government. Its avowed aim was to prevent disintegration of the State. In order to pass this Amendment the Sinhala needed, and did have, a three-quarters majority in the Senate.

1984 - the Special Task Force, which was entirely Sinhala was established under the leadership of President Jayawardene's son Radi. 10.1.84 - all Party Conference. December - large scale anti-terrorist detentions took place, especially in the North and it is alleged that there was a secret killing of 100 Tamils at Vavunya. The All Party Conference collapsed.

1985 - 14 May - 146 Sinhalese civilians were killed at Anuradhabura by Tamil militants. Three days later this was followed by an alleged massacre at Thambiluvil of 40 Tamils and thereafter the continued deterioration of the situation in the North with escalating violence on both sides.

1987 - The Sri Lankan armed forces were re-equipped for a march on Jaffna which took place in April/May with indiscriminate bombing and shelling.

1988 - June - Indemnity Bill.

- September - the arrest, evidence of illtreatment in custody and death of Advocate Lianarachchi followed by suspension of proceedings on Indemnity Bill. December - Enactment of an Indemnity Act.

Professor Manor has told me that before British rule there were entirely separate kingdoms of Tamil and Sinhala but with the advent of British rule these where brought under a single administration as was common policy throughout under British rule. The two main ethnic groups - the Sinhalese and the Tamil - have been inhabitants of the Island for over 2,000 years. The Tamil group of long standing is known as the Srilankan Tamils and the Plantation Tamils were introduced by the British mainly to the tea plantations in the last century. In the Peninsular itself I am told that there are not more than 10% Sinhala.

Until the British left there was little violence between the two groups but nonetheless a "Tamil bashing" approach, at least in thinking, can be traced back amongst the Sinhala to 1934. This may have been due partly to jealousy because the Tamils were the smaller population but yet had greater placings in government and commerce and partly because the Sinhala have developed a predominant tendency to victimise the Tamil minority for mythological fantasies more than in any other country in the Commonwealth or former Commonwealth except, possibly, the Republic of South Africa. He went on to tell me that Sinhalese chauvinism preached that they had a divine mission to protect Buddhism in Sri Lanka.

I think, to summarise much of the rest of his evidence on this, Professor Manor is maintaining that this mythological belief which is deeply embedded in their culture is now being taught to children from birth and instilled at every opportunity.

The legislation since 1983 is, he claims, aimed at Tamils; all Tamil influence has been removed from the armed forces and a sort of praetorian guard-turned riot squad trained by Israelis and led by the President's son has been let loose upon the Tamils. This, he says, is the most effective instrument of State repression. The areas in which the Tamils can operate have shrunk between 1949 and 1987 very considerably. The Accord has inflamed Sinhala chauvinism and has fed what they believe to be a step towards the fulfilment of the ultimate nightmare invasion from Tamil Nadu in South India where there is a population of some 50 million Tamils. In the view of Professor Manor the withdrawal of the IPKF, despite its history of atrocities, is nothing to what will happen if and when the Accord breaks down and the Sri Lankan army are put back into the North.

The examples of arrest, detention, torture, deprivation, destruction and starvation, particularly in the North, is catalogued depressingly in both Dr Rogers' affidavit and especially the first bundle of documents. In summary these comprise many incidents, especially in October and November 1987 of the shelling both from land and sea of villages and towns in the North; the bombing and other attacks from helicopter gunships and aircraft, down to specific examples of the shooting of civilians and other non-combatants by both the Sinhala army and the IPKF.

There are a large number of affidavits being Exhibit MAR 1 to Dr Rogers Affidavit, detailing individual examples of appalling atrocities alleged to have been carried out by both the IPKF and the Sri Lankan forces. What these affidavits were obtained for is a question raised by the respondent and I do not think it is disputed that one reason has been with the aim of claiming compensation for the deaths of relatives and the loss, in many cases, of the breadwinner of the family. Clearly such a purpose could encourage exaggeration. However I think one must be careful, as a matter of sheer humanity, in imputing to deponents untruth in relating such an event as that related by Puvaneswary, the widow of Ramupillai Poopalasingam, as to the manner of the deaths of their children and others.

It all follows the same pattern and regretfully a pattern established as the norm in many parts of the world today, and the only point that I think I need to state about this evidence is that in every case that has been laid before me the victim has been a Tamil. This is not to say that there have not been incidents mentioned to me involving Sinhalese; what I have been told is that where the victim was a Sinhalese there was some element of mistake. Professor Manor cited to me an example of a Sinhalese docker who had bee pickpocketed and reacted in an agitated fashion and therefore he was thought to be a Tamils and therefore he was thought to be a Tamil. Whether the incident is true or not I cannot know, but I cite it as an example of what is perceived to be a situation in Sri Lanka by an informed observer such as Professor Manor.

Of the anti-Tamil riots over the years, Professor Manor makes point that whilst it was a mob that perpetrated them it was the government, particularly in 1983 by President Jayawardene, that prevaricated for 5 days before sending in forces to restrain the massacre which in that period resulted in over 100,000 being rendered homeless and over 2,000, mainly Tamils, being killed. He points also to the fact that these mobs acted in retribution based on perceived myths and wild rumours of what Tamils were supposed to have done, fuelled by Sinhalese at all levels; and as to the wanton massacre by the Sri Lankan armed forces, due to indiscriminate action this was caused by a lack of intelligence in the Sri Lankan army, therefore an ignorance of where the enemy was leading to a "saturation" approach inevitably excessive and inevitably careless of the lives of non-combatants. However, Professor Manor went further and he made two statements to me which I will quote:

"The inspirational force behind such behaviour by the Sri Lankan armed forces was a racialist hatred of Tamils and was carried out to terrorise them in a kind of hysterical manner. There is very little substance in the Foreign Office view that Sri Lankan terror is purely incidental, examples of uncontrolled forces.

The march on Jaffna in April/May 1987 when the Sri Lankan forces took control and indiscriminately bombed, shelled and massacred innocent civilians was predominantly to terrorise and if the IPKF had not prevented the forces from taking Jaffna there would have been more."

He told me that the Tamils will suffer from any civil war between the LTTE and the IPKF and the Sri Lankan forces and the outlook for further armed conflict is exceedingly bleak.

As to the reports by Amnesty International both Dr Rogers and Professor Manor considered that they were well researched and generally fair and accurate. He went on to say that today no Tamil politician has any credibility amongst his own people if he stops short of advocating separatism.

Dr Rogers in his evidence did nothing to dispel Professor Manor's dismal picture and forecast. He himself is able to speak personally of what has happened after 1987 because he has been, as it were, in the thick of it.

He tells me that habeas corpus is of low priority in the courts and the death of Attorney Liananrachchi in custody in the middle of 1988 seems relevant to this particular point. This Attorney was known to have filed over 100 applications for habeas corpus. His death led to a boycott by the Bar in Colombo and a refusal to defend any police on charges against them of violence to members of the public until those responsible for Attorney Lianarachchi's death had been brought to justice. I am told that it was this event which led to the then suspension of passage of the Indemnity Bill but that it now has been passed into force in December actions brought against any member by a new government.

Whatever the purpose may be behind it, the long title states it is "to restrict the taking of legal proceedings against any person in respect of certain acts and matters done or purported to be done during the period July 24 1979 to December 31 1987". The Act, if it is in the form of the Bill, is perceived of its intention by Prime Minister Premadasa as reported in the newspaper ‘The Island' for 7 September 1988, page 685 of the bundle:

"They all recognise that the police, army and security personnel, should be provided the maximum protection and safeguards in the performance of their duties in tackling terrorism and other violent acts. The government was always giving them support. The Indemnity Bill would be warranted if pardons were given to terrorist groups also."

However as Mr Premadasa went on to say, pardons to terrorists had not come into operation fully. I am not aware that they did in December either.

Dr Rogers stated that his main conclusion, drawn from his visit, was that the situation was highly complex and the country unstable. The IPKF was an army of occupation whose presence was unpopular with the majority of Tamils due to the October was and the siege of Jaffna Town, when it was estimated that some 2,000 by them during the assault and subsequently. Dr Rogers went on to say that quite apart from the Sri Lankan identity card which was necessary, an identity card issued by the IPKF was necessary in the North, without which an individual was liable to summary detention with, as he somewhat euphemistically puts it, "all the other risks that this involves". He went on to state:

"However it also means that somebody who is returned to Sri Lanka from abroad must make himself known to the IPKF in order to safeguard his position subsequently. In doing so however the person renders himself liable to arbitrary action particularly because they will have to explain where they arrived from."

Dr Rogers refers to evidence given to him by the Secretary of the Citizens Committee in Jaffna, Mr Sivanandaraja, particularly in paragraphs 7 onwards of his affidavit. Mr Sivanandaraja was himself arrested. One part of the evidence in paragraph 9 refers to 2 youths who were tortured and stated to Mr Sivanandaraja that they had identified innocent people as LTTE members at random to avoid illtreatment.

Dr Rogers produced a memorandum from Herr Walter Schmid of the Swiss Central Refugee Aid Organisation. This records views of Herr P Arbenz, whom I am told is an Under-Minister in the Swiss Government. It appears on pages 324 and 325 of the bundle of documents and relates to an incident Herr Arbenz witnessed and I quote from two parts of this report though all of it is of some significance:

"Swiss Tamils can stay. Peter Arbenz, Delegate for Refugees, announced on July 27 1988 that Swiss government maintains current policy on Tamils: no forcible return of Tamils whose application had been turned down with only exception of condemned drug traffickers."

"Arbenz said that it was impossible to conclude whether there are safe regions for Tamils. Returnees would come under strong pressure by different groups (recruitment or financial contribution for militants). The conflict is not simply a Tamil/Sinhalese one; it is much more complex. Every group seems to struggle against every other group. The Indian attitude is ambiguous. It is impossible for any party to win the military conflict which will probably not be settled for years."

In cross-examination Dr Rogers told Mr Potts that ethnic and racial conflicts had taken place over the past 25-30 years. He added that to travel past Vavuniya, which is a town that figures frequently in the reports and is one of the check-points into the Northern area on the main road form the South requires a pass, and ID card and IPKF pass or card.

Mr Potts questioned him also over the habeas corpus application exhibited at MAR 4, which concerned the deportation of a Tamil from France in January 1987 who has been held in detention ever since, apparently at Boosa Detention Camp in the South. Dr Rogers said, "I understand that the father started these to find out where his son is. I have no knowledge if he was charged. I believe he may not have had valid documents."

A consistency between the claims made by the appellants and events investigated by or witnessed by either Dr Rogers or Professor Manor is apparent and a number of specific points were put to the witnesses. One in particular concerns the death of the first appellant's brother at Point Pedro (see page 699 of the bundle). Dr Rogers said "Sivakumaran's brother's death is consonant with what I have said." To me, Dr Rogers said that there were an elaborate series of curfew systems as well as prohibitions on fishing within 2½ miles of land. The problem was that coming and going to the fishing grounds to follow his livelihood involved traversing those curfew or "no go" areas with the sort of risk that Sivakumaran's brother had to take. There has been a shortage of food in the North due not only to the internal activities but to a blockade by the Sri Lankan army. Generally it seems that the evidence led showed the victims of individual illtreatment at the hands of Sri Lankan forces to be young, mainly male.

Before I leave the evidence, both witnesses drew analogies between the situation in Sri Lanka and situations in Germany and their occupied territories at the time of the Third Reich and also with south Africa, Imperial Japan and in China in the 1920s. whilst stopping short of an allegation of genocide Professor Manor said the difference between Sri Lanka and Nazi Germany was the efficiency of the State machinery in the latter, but the hysteria is of a piece with Nazi Germany against the Jews. He seemed to be drawing a number of parallels between the situation under Hitler in the Nazi's approach to the Jews and their own vision of themselves. He says both Sinhala and Germans regarded themselves as Aryans; both regarded themselves as custodians of some imagined higher form of human life and both practised repression of those whom they saw to be outside the pale.

Whilst I understand the analogies which have been drawn, for myself I do not find such comparisons add anything of value to the undoubted experience, knowledge and erudition which Professor manor has brought to his evidence. Whilst I have no personal familiarity with Sri Lanka, I cannot help but draw upon my own experience of over 30 years in what is sometimes known as the developing part of the Commonwealth and, such emotive gloss, however deeply felt, if anything detracts from its impact and my view of the detachment of the witness.

Submissions

Mr Potts adopted Miss Gooch's submission in the jurisdictional point that I have no right to hear the appeals in relation to appellants 4 and 5.

Whilst he conceded that the decision in R v SSHD ex parte Thirukumar QBD, Times 27.12.88 concerning the "12 hour" rule is binding upon me, he urged that the effective decision on the asylum issue was taken on 20 August for the first appellant and 1 September 1987 for the second and third appellants but the decision to refuse entry was taken upon their arrival (in February and March) and has not been set aside and, further, the burden of proving that the "12 hour" rule was not complied with rests upon the appellants and they have not discharged it. In respect of appellant 3, he had applied for asylum immediately on entry on 19.3.87; it was impossible for a decision to be issued and relayed to the appellant within 12 hours, anyway there was a re-interview which I think he was saying was really a continuation of the first one. On the face of it he contends the decision was issued immediately after that re-interview.

Mr Potts submitted that it was not for the respondent to produce evidence of the basis upon which he reached his decision and that I must ask myself in relation to all the evidence which has been laid before me as to what has befallen so many Tamils, how was it obtained and for what purpose? This submission was directed to the affidavits detailing the loss of relatives which he said may have been produced as a "basis for a claim for compensation".

Mr Potts accepted the broad picture that Sri Lanka is severely unsettled and at least in areas, dangerous, without accepting that each incident which has been related is necessarily true. In particular, regarding the criticisms levelled at the explanatory statements, he said even if those criticisms had any merit there was no substantial difference between them and what the appellants said later in their new statements.

As to the two witnesses, Professor Manor and Dr Rogers, he could not fault their qualifications but he questioned, particularly in Professor Manor's case, their interpretation of the situation: he strongly urged that Sri Lanka is still a democracy and Tamils were not liable to be persecuted as Tamils.

Turning particularly to each appellant he submitted that the first appellant had embellished his statement later and his credibility therefore in a claim to be a member of the Tamil Tigers was suspect at very best. He had no reason for political asylum and his fears simply stemmed from the civil disorder. Indeed Mr Potts said this appellant had more of an economic motive for leaving than anything else.

As to the second appellant, he was the youngest. Only minor points have been raised later in denial of what he is alleged to have said in the explanatory statement - he has no credibility at all.

As to the third appellant, nothing really had happened to him at the time upon which he could base a claim.

As to the fourth appellant, his arrest, detention and beating was irrelevant since it occurred long afterwards at the hands of the IPKF and not the Sri Lankan authorities. Now he is a student in Colombo and none of what had happened to him appears to have been on the grounds of race.

The fifth appellant's claim to have been involved in PLOTE (page 775 of the bundle) was highly unlikely. He had embellished his statement later, arrived in on a false passport in a false name. Mr Potts urged that it was highly that the interpreter would have told the appellant that the interviewing officer was not interested in the appellant's attempt to state that he had given financial support to PLOTE.

Finally Mr Potts submitted that if I were to allow and of the appeals I should not giveaway directions and indeed insofar as directions as refugees were concerned that was entirely a matter for the Secretary of State. When asked to give under-takings he said categorically that none could be given but of course any recommendations which I might make would be most carefully considered.

Mr Blake made his submissions to me in regard to the preliminary points. In relation to both the second and the third appellants he submitted that the facts in Thirukumar were similar to those of the third appellant and the only effective examination had been completed on 19.3.87; but that the decision equally applied to the second appellant because the first decision by the respondent had been set aside; it was nonsense to say it was set aside for one purpose but not for another. There was only one claim to enter and that was based on asylum.

The examination of the third appellant had been completed on 15 February. The decision, Mr Blake contends, is that handed to these appellants on 1 September and the purported fresh interviews were, to use the same word used by Parker L J in Thirukumar, "unreal". Whilst on this point it was submitted that the same argument applied to the first appellant. The terms of paragraph 6 (1) of the Second Schedule to the Immigration Act 1971 out of which the "12 hour" rule arises is as follows:

"Subject to sub paragraph (3) below, where a person examined by an immigration officer under paragraph 2 above is to be given a limited leave to enter the United Kingdom or is to be refused leave, the notice giving or refusing leave shall be given not later than 12 hours after the conclusion of his examination (including any further examination) in pursuance of that paragraph; and if notice giving or refusing leave is not given to him before the end of those 12 hours, he shall (if not [a British citizen] ) be deemed to have been given indefinite leave to enter the United Kingdom and the immigration offices shall as soon as may be given him written notice of that leave."

Mr Blake referred me to the Handbook on Procedures and Criteria of Determining Refugee Status issued by the UNHCR in September 1979, in particular paragraphs 33, 43, 51-3, 55, 59 and 135. He also referred me to the Geneva Convention, particularly Articles 1, 2, 7, 8, 10, 11, 13-15, 17, 20, 33, 48, 52, 54 and 85. As to authorities I was referred to Sivakumaran, Queen v SSHD ex parte Jeyakumaran, 28, 6.85 QBD, Swati v SSHD 1986 Imm AR p. 88, Jonah, 1985 Imm AR p.7 especially at page 13, and I quote what Nolan J said concerning the meaning of persecution:

"……….. the proper approach must be to apply the word persecution in its ordinary meaning as found in the dictionary. I accept, of course, that considerations of policy may require a stringent test to be adopted if one is not to be flooded with those claiming political asylum, but I can do nothing other than go by the language used in paragraph 134 and I see no reason for giving that language anything but its ordinary meaning …….It follows as a matter of law that there was a well-founded fear of the applicant being persecuted in the ordinary meaning of that word - that is to say, subjected to injurious action and oppression".

I am not required, Mr Blake says, to pass judgment upon Sri lanka but I am required to take into account the background and he referred me especially to the comments made by Lord Goff of Chieveley in Sivakumaran at page 155 and particularly paragraph 42 of the Handbook. The point at issue before the House of Lords in Sivakumaran was not only that he had the fear but also that it was to be objectively justified-it was that view which prevailed.

I would add at this point that I think it is important to bear in mind what Lord off referred to as ‘the rival approaches of the Secretary of State and the High Commissioner, the one to see that there is a suitable haven for refugees and the other to ensure that the country does not become flooded by those seeking refugee status but whose risks are not persecution for a Convention reason.'

Mr Blake proceeds in his submissions, referring particularly to paragraph 43 of the Handbook. In relation to the third appellant his brothers were shot: then paragraph 55 in which the first appellant relates that his brother was being prevented from earning his livelihood by the curfews and his death was a consequence thereof.

Concerning the evidence generally, Mr Blake asked rhetorically "Why, as there was no rebuttal of the evidence and in its absence should I not accept all of it" and in particular that the appellants were now living in insecurity not helped in the cases of two of them by the loss of the identity cards. He reminded me also that there were countries such as Thailand and Bangladesh which had a history of refoulement.

Mr Blake submitted that there had been no fundamental changes in Sri Lanka since the decisions had been taken by the respondent. The whole body of individual atrocity reports collectively cannot be ignored in the context of a racial history in Sri Lanka: they are objective acts with which we must be concerned. The Sri Lankan army was exclusively Sinhala operating in an almost exclusively Tamil area. They had regiments which had ethnic names based on historic victories over Tamils and the force that was used was grossly disproportionate to the objectives to be achieved. Clearly, he claimed, the Sri Lankan army didn't care whom they hit and indeed they had non-combatant injuries as one of their aims. No soldier has ever been or now, since the Indemnity Act, ever will be, prosecuted.

Mr Blake completed his submissions which were relatively short because he had dealt with most issues in a very full opening, of which he was kind enough to give me a written skeleton and which I found to be particularly helpful.

Dealing with the question of directions, both Mr Riza and Mr Blake argued forcefully that these were appeals in which directions under Section 19(3) of the Immigration Act 1971 were essential and that in such cases pure matters of procedure could not be allowed to thwart my responsibility if the appeals were allowed to ensure that my decisions were effective.

Mr Riza's submissions I have dealt with in part already. He submitted that there is a similarity between the Jews in Europe and the Tamils in Sri Lanka - both were regarded as illegitimate interlopers by the ruling section of the community.

As to the burden of proof, Mr Riza contended that the evidential burden has shifted indeed, he said, been overturned, and he referred me to rule 8 of the Immigration Appeals (Procedure) Rules 1984. I think he suggested this argument to have particular relevance to the preliminary argument addressed to me in relation to the fourth and fifth appellants as to my jurisdiction. Mr Riza drew my attention to the fact that at first, that is when the fourth and fifth appellants arrived, the respondent was going to act without looking at the situation at all once he had seen that they had forged documents and also there was on the fact of it something amiss with the first appellant's papers and the respondent was prevented from removing them by the Divisional Court at the eleventh hour. He urged that there is ample evidence that what has taken place in Sri Lanka is directed quite deliberately at Tamils. One example cited (at page 699-702 of the bundle) is what happened to the first appellant's brother: there is clear evidence of use of excessive force patently against Tamils: there is evidence of reprisal killings and of torture - reprisal killings must always be a Convention reason as of their nature they are perpetrated against innocent members of an identified group. An example is given on page 730 and the connection between persecution for a Convention reason and the IPKF is that the IPKF are in Sri Lanka at the invitation of the Sri Lankan government was, I think, the point made to me.

I do not think it is necessary for me to detail the Articles of the Geneva Convention to which I have been referred in respect of the actions alleged to have been carried out by or on behalf of the Sri Lankan government, but generally people are entitled to respect for their persons, honour, family rights, religious convictions and practices and to be treated humanely and protected against acts of violence or threats (Article 27). Murder, torture, corporal punishment and other measures of brutality, whether against civilian or military agents, is prohibited under Article 32 and the civilian population is protected under Article 51, and Article 13 insofar as non international armed conflict is concerned. Indeed it is pointed out to me that the Geneva Convention applies equally to national as to international conflicts. The intensity in the bombing where blanket bombing and strafing in built-up areas cannot but fail to kill non combatants - 5,000 it appears in Jaffana. As to the taking of hostages there is no doubt, Mr Riza said, that it took place and he referred me to page 787 of the bundle and the taking of hostages is, of course, banned as I have pointed out under the Geneva Convention.

As to the first appellant there was nothing to suggest in his background that he used violence himself even if he were a member of the Tamil Tigers. It must be very difficult to arrive in a country claiming membership of what would be regarded perhaps as a terrorist group. As to opportunism, Mr Riza said there was no real evidence at all of this.

Mr Riza pointed to the legislative history as evidence of a bigoted direction against Tamils by Parliament, to the blockade which caused starvation and which is referred to at page 715 by the fourth appellant. The treatment he describes was an interrogation to find out if he was a member or if he knew of members of the Tamil Tigers and it is the intensity of those efforts which makes it persecution coupled with the patently obvious hatred expressed by Sinhala of Tamil.

I was not addressed more than perhaps in passing on the important point as to the effective date to which I should relate the facts: I took it that both parties agreed it should be the date of the decision to remove the appellants to Sri Lanka but I can take into account the evidence which had been adduced by Mr Riza's instructing Solicitors, obtained when they visited Sri Lanka (for example of the fourth appellant at page 727 of the bundle) to see if the claim by the appellants that they were likely to be persecuted was plausible and consistent with the events on the ground as it were. The fourth appellant had hardly set foot in Jaffna before what he claimed would happen to him did so (page 729). As to the IPKF they imputed knowledge or membership of the LTTE by virtue of someone being a young Tamil: a Tamil I am told is readily identifiable not only by being in the area but by his name.

The fifth appellant's connection with PLOTE and the point made that there was a compulsion brought to bear on him to make financial contribution to political parties is submitted as relevant.

Completing his submissions on the fact, Mr Riza repeated that it was clear there was no question of the appellants being economic migrants and their stories have been substantially consistent all along. He urged that if all else fails the action by the Home Office is irrational and perverse, a departure from the accepted moral standards and therefore not in accordance with the law: that does not need a Convention reason and he referred me further to CCSU v the Ministry of Communication 1985 AC 374 per Lord Diplock 1984 3 All ER page 935.

Findings of fact

I have little difficulty in accepting that each of these appellants left Sri Lanka as claimed because they were afraid that as young Tamils every minute they remained they were at risk. The nature of the risk also I have little difficulty in being satisfied about. For those living in and around Jaffna by the end of 1986 and the beginning of 1987 it could not be forecast what the day would bring by way of tension, interrogation, detention and even physical harm and destruction of property I accept that a young person in Jaffna was ore prone to these risks but the risk of destruction of property regardless of whether they were part of the 90% Tamil or 10% Sinhala population affected young and old alike. I accept the evidence also which each of the appellants have given regarding in the case of the first appellant his arrests and interrogation and the death of his brother as he describes. I do not accept he was a member of the LTTE. I have no evidence of him after his return at all.

As for the second appellant I accept the destruction of his family in the shelling and broadly his account of the acts he witnessed. I accept he has been detained several times especially after his return due to lack of an identity card.

As to the third appellant, I accept that his home had been burned down, that he had been arrested and two of his brothers had been shot. I accept nothing of consequence has occurred since his return but I observe he says he is at risk in Colombo.

As to the fourth appellant I accept his version of his family's position and that he had been detained, assaulted and his home had been destroyed later: also on his return he had been arrested and later maltreated in Jaffna.

As to the fifth appellant I accept that his family and his own businesses had been raided and fled, that a cousin had been killed and he himself had been arrested and detained, both in 1986 and later and that on his return he had been taken in for questioning. I am not satisfied as to his claim to membership of PLOTE.

There is no dispute in respect of and of the appellants generally concerning the circumstances of their arrival, their interviews here and their removal.

As to the overall position in Sri Lanka, the chronology which I have set out seems to me to be unchallenged. Likewise the intensive bombings, shelling and lists of missing persons both before the Peace Accord and after the IPKF had been invited in by the Sri Lankan government to restore order in the North. I have counted at least 13 examples of shelling of villages between the beginning of October and the beginning of November 1987. I have counted also 15 examples of the alleged shooting of non-combatants by the IKPF and 3 examples of particularly brutal torture and numerous examples of people missing and in detention, one in particular on 16 November 1987. I doubt if all the incidents which have been reported actually happened, or happened in the way that they are reported - in a situation such as has been described to me in Sri Lanka it is inevitable that there will be tendencies towards exaggeration and the imputing of wrong motives by one side to the other. Both Dr Rogers and Professor Manor seem to me to be in agreement in stating that:

(1)        the government of Sri Lanka is predominantly Sinhalese;

(2)        that its executive arm (in the form of the armed forces) is as near as makes no matter 100% Sinhala;

(3)        that the opposition is, if not 100% Tamil, is perceived by the government to be so and seen, at least by the ‘lunatic fringe' of the Sinhala, to be a danger to Sinhala dominance;

(4)        that this perception may extend even to the majority of the Sinhala, even to President Jayawardene, as he then was, and whom Professor Manor regards as the most intelligent and capable of leaders in South Asia;

(5)        that there has been a steady polarisation into two solid phalanx: Sinhala, who are now completely dominant in all walks of political and economic life in Sri Lanka generally and notably in Colombo the Capital on the one side and an embattled Tamil, mainly in the North but by no means completely so, on the other, and

(6)        that they are pessimistic for any chances of a way out of this impasse.

In this situation as I have already said I find the introduction of comparisons emotive and unhelpful, particularly European ones with the Jews under the Third Reich. The picture painted is incredibly black - it is difficult to accept that it is quite so hopeless. It would have been more satisfactory if a balance had been introduced by other evidence upon which the respondent must have relied when reaching his decisions: he is not obliged to and in his wisdom he decided to call none - for all I know there may be nothing helpful he a call. Clearly however there are many Tamils still living, conducting their business and going about their ordinary affairs in Sri Lanka. If there had not been we would have heard about it.

I have stated that generally speaking there is no dispute about the violence of life in the North of Sri Lanka but I go further and I accept in general, if not in complete detail, the evidence of excessive force against non combatants in the North by both Sri Lankan armed forces and the IPKF, the agent of the Sri Lankan government, as has been recounted. And those non combatants are mainly Tamil or seem to be Tamil. As in other areas I accept that young Tamils not in firm and settled positions are also the victims of and in risk of arrest, detention and worse by the police. The chronology of events I accept. The government has a serious state of disorder in the country which it must solve if the country is to survive and its only means of putting into effect its decisions is through an executive arm almost entirely comprised of one race or ethnic group pitted against an opposition of another. The former group is Sinhala who see themselves broadly and particularly at the lower echelons of society on its very lowest level as threatened by the latter, who are the Tamils.

The law

1.            Preliminary submissions

Miss Gooch took the jurisdictional point that there is no appeal at all by the fourth and fifth appellants because they entered on forged documents and exhausted their rights of appeal when they applied as visitors and those applications were refused. Miss Gooch addressed to me a most interesting comprehensive argument and if I do not deal with it in any great detail it is out of no disrespect for the way in which she presented it, which was both clear and helpful. I am however against her.

I do not think that R v IAT ex parte Ashraf (decided before the Court of Appeal on 16.12.88) had to deal with the question of an appeal from outside the country and I do not think that there is anything in that judgment which implies that there is no appeal at all, simply that there is no appeal from within the United Kingdom. I cannot see anything in either Sections 4 or 13 of the Immigration Act 1971 which suggests that an application by an intended entrant into the country which is refused, and in particular one who is applying for political asylum, is denied all rights of appeal. Indeed in regard to a claim to political asylum, to so hold may well be contrary to our Treaty responsibilities. The decisions were finally given on 20 August 1987 and I do not think I can ignore the respondent's letter of 2 March 1987 which I read to mean that this sort of point would not be taken. In any event, as I have said, there is no merit in my view in the argument and I do consider that I have jurisdiction to hear and consider the appeals of the fourth and fifth appellants.

Turning to the second point argued by Counsel for the first three appellants that they have indefinite leave to remain by virtue of the decision in Thirukumar. I agree that the facts in that case are very similar to those in the case of the third appellant. He applied for political asylum immediately upon entry and no decision was made until 1 September 1987. He was interviewed on 19 March and the so-called further interview which took place on 1 September was no interview at all. It seems to me that this is just such a case which the Court in Thirukumar had in mind and that I must therefore apply the decision reached in it to the third appellant. Under those circumstances in terms of paragraph 6 (1) of Schedule 2 of the 1971 Immigration Act (as then in force) nearly six months had elapsed between the conclusion of the interview and the date of the decision. The third appellant, RASALINGAM, is entitled to indefinite leave to remain in the United Kingdom.

With regard to the first and second appellants: the first appellant, SIVAKUMARAN, applied firstly merely to enter in transit but followed this with an application for asylum. In the second appellant's case he applied immediately for political asylum. In both cases a refusal of leave to enter was given, in the first appellant's case on 16 February and in the second appellant's case on 17 February. In the first appellant's case it seems clear from the explanatory statement that Mr Clements, who took over the interview on 16 February, having referred the matter to the Home Office communicated a decision to refuse the application on the same day. Therefore at that stage the provisions of the Act had been complied with. In relation to the second appellant, the explanatory statement relates that he was interviewed on 15 February and then, I quote; "On completion of the interview the case was referred to the Home Office for a decision. On 17.2.87 the Home Office informed the immigration officer that the passenger's application for asylum fell to be refused".

I have not been addressed in any detail in relation to this different situation and it has not been suggested to me that where the respondent says "On completion of the interview" he meant anything other than the plain meaning of those words. Therefore the interview was completed on 15 February. Since the appellant was notified of rejection of his application of asylum on 17 February more than 12 hours had elapsed. It is not even suggested that the appellant was re-interviewed or the interview was re-opened in any way on 17 February: I note particularly the last part of paragraph 4 of the explanatory statement (page 805 of the bundle). Therefore in VATHANAN's case also the provisions of paragraph 6 (1) of the Second Schedule to the Immigration Act had not been complied with and he is also entitled to indefinite leave to remain.

Turning to the first appellant and what will be an alternative argument for the second appellant, it is said that the first decision was set aside and I should therefore look only at the second one. In the case of the first appellant it was on 20 August 1987 and in the case of the second appellant on 1 September. It is common cause that the first decision was set aside for the purposes of the judicial review and the question is although not formally set aside if it goes for that purpose does it go for all purposes? All that I can see in Sivakumaran is what Lord Keith said in introducing his judgment, and he said:

"The Secretary of State for the Home Department refused the applications of three of them on 20 August 1987 and of the other three on 1 September 1987. All six were granted leave to apply for judicial review of the Secretary of State's decisions."

I think that it is highly unlikely that either Counsel or the Courts had in mind, when deciding to treat the effective decisions to be those in August and September, the technical points arising from paragraph 6 (1). Paragraph 6(1) is directed, as I see it, to the need to act swiftly and to be sure that the applicant is informed, and informed speedily, of his position: the fact that judicial review proceeded ultimately on the basis of later decisions does not, in my opinion, affect this situation which had fully taken effect long before. The appellants were able to persuade the Court to grant leave, initially upon those first decisions; it is in relation to a situation entirely contained within those first few days and before any question of an agreement to treat the decisions for the purposes of judicial review to be later ones, that I have to consider this particular point. Therefore in the case of the first appellant I consider that Section 6 (1) was complied with and in his case therefore this argument is rejected. By the same token I would reject this argument in relation to the second appellant: but he benefits from the first argument anyway.

I will now proceed to deal with the claims for political asylum in the cases of all appellants (including 2 and 3 in the alternative in case I am wrong in law that they have indefinite leave to remain in the United Kingdom). Paragraph 134 of HC 169 reads as follows:

"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 a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any such claim is to be carefully considered in the light of all the relevant circumstances."

Paragraph 73 of HC 169 reads as follows:

"Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision is regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees."

The most comprehensive guidance for my approach in this case which is available is that of the House of Lords of these very same appellants and I quote particularly from the judgment of Lord Keith starting at page 152 as follows:

"In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In R v Governor of Pentonville Prison, ex parte Fernandez [1971] 1 WLR 987, this House had to construe section 4 (1) (c) of the Fugitive Offenders Act 1967, which requires that a person shall be returned under the Act if it appears:

‘that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reasons of his race, religion, nationality or political opinions.'

Lord Diplock said, at p.884:

‘My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. "A reasonable chance", "substantial grounds for thinking", "a serious possibility" - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1) (c)."

I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded.

I think in this particular case it is also valuable to bear in mind what Lord Templeman had to say on page 154, and I quote:

"The task of the Secretary of State in the present proceedings was and is to determine in the case of each appellant whether the appellant will be in danger of persecution if he is sent back to Sri Lanka. Danger form persecution is obviously a matter of degree and judgment. The Secretary of State accepts that an appellant who fears persecution is entitled to asylum in this country unless the Secretary of State is satisfied that there is no real and substantial danger of persecution. The Secretary of State has concluded that there is no real and substantial danger of persecution. In R v Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 535, 537 I pointed out that:

‘Applications for leave to enter and remain do not in general raise justiciable issues. Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the immigration authorities in pursuing inquiries abroad, in consulting official and unofficial organisations and in making value judgments. The only power of the court is to quash or grant other effective relief in judicial review proceedings in respect of any decision under the Act of 1971 which is made in breach of the provisions of the Act or the rules thereunder or which is the result of procedural impropriety or unfairness or is otherwise unlawful… where the result of a flawed decision may imperil life or liberty a special responsibility lies on the court in the examination of the decision making process.'

In the present case an examination of the decision making process does not disclose any error on the part of the Secretary of State or justify the court in contradicting his view that the applicants will not be in danger of persecution if they are returned to Sri Lanka."

Although not specifically mentioned the decision of Taylor J in Jeyakumaran has an especial relevance to the situation revealed in these particular appeals: much is helpful but I quote as follows:

"A number of criteria seem to underly these remarks which, in my judgment, are false: (1) If an applicant or his family have not been personally singled out for persecution, he does not qualify for asylum. This is a startling proposition. It can be little comfort to a Tamil family to know that they are being persecuted simply as Tamils rather than as individuals. How can this dismal distinction bear upon whether the applicant has a well-founded fear of persecution? When Mr Handley says there is ample evidence of violence against the Tamil minority, but not that it was directed against the applicant's family in particular, the words "in particular" surely mean no more than "alone", in which case they are nihil ad rem. If they meant that violence had not been directed at the applicant and his family, they are totally contrary to the unchallenged evidence that the applicant and his father were beaten up and threatened with death. Whilst I am conscious of the administrative problem of numbers seeking asylum, it cannot be right to adopt artificial and inhuman criteria in an attempt to solve it."

"(2) The implication that violence to individuals flowing from a conflict between factions cannot amount to persecution seems to be that oppression or violence to a racial minority will only be persecution if conducted by the authorities. Again, I ask what solace is it to the victim to know he is being persecuted by soldiers out of control rather than by the Government, if that be the case. In this context, it is relevant to quote paragraph 65 of the Handbook on Procedures and Criteria for Determining Refugee Status issued by the UNHCR."

and:

"Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

and:

"The evidence seems crystal clear, that the reason for his treatment was membership of the Tamil minority. That brings the case squarely within the reasons set out in paragraph 73. No other reason has been suggested."

There are numerous other decisions on the issues before me which are of assistance in interpreting one or more areas. In particular the need to take into account the entire background, the particularly light nature of the burden of proof which rests upon the appellants. I am mindful of them and I hope that without spelling them all out it is apparent that I am. Furthermore other paragraphs of the Handbook to which I have been referred are present in my mind which I have not quoted in extenso. The extent of the violence which has been taking place increasingly over the years in Sri Lanka and has been accompanied by a polarisation of the ethnic camps of the community - Sinhala or Tamil and one has fed upon the other. I think it is common cause that if the appellants are returned they are at risk. Specifically it seems to me that there are two risks - firstly young Tamil men and boys in Colombo who cannot readily explain their presence are suspected of being Tamil Tigers. In the cases of the appellants returned from the United Kingdom without jobs or homes in Colombo, if they stay they are at risk when unable to explain their position. Without identity cards, (which appear to me on the evidence to have been removed from them around September 1987), the risk is greater. Secondly there is the risk they run in living in the North or travelling to and from it. We do not know what has happened to the first appellant since his return but we do know what has happened to the fourth appellant. On his return at Colombo he was arrested, released and when he went up to Jaffna arrested and tortured. In relation to the fifth appellant we know that he has been questioned and accused of connections with the Tamil Tigers as well as other similar frightening if less serious actual incidents than those which he has witnessed have happened to others.

The question I must ask myself is am I satisfied that there is a real and substantial danger that being young Tamil males, as these all are, they may be treated or mistreated as I have described differently from people as a whole and by nature of their being as such a mainly ethnic or racial group.

The way that the evidence has been led seems like an invitation to do the very thing which it is no part of my duty to do, that is to make some pontifical judgment of the Sri Lankan government. I am not prepared to do that, neither am I prepared to accept the suggestion that the situation has reached the proportions argued for by, particularly, Professor Manor.

It is of particular significance that there is a preponderance of Sinhalese in the armed forces and an apparent inability to control their activities: there exists an ethnic split and the apparent unwillingness to keep either side in check.

The IPKF are as much agents of the government as are its own armed forces. There is a mere threat to the integrity of the Sri Lankan State from some of the Tamil community for whatever reason which any responsible government must contain, or try to contain; in the process of so doing everyone who is in the crossfire, whether that crossfire be literal or metaphorical, is at risk: there is legislation, such as the Sixth Amendment, which is directed to a protection of the State and thus inevitably seen to be directed at Tamils since they are the only other group and who espouse separatism but also an Indemnity Bill was placed before Parliament and was suspended when the Civil Rights lawyer was perceived to have died in police custody under, at best, suspicious circumstances. Finally there is undisputed evidence of the violence I have described, especially in the North but also in other parts of the Island as well.

This background I must then apply to the appellants. It is inevitable that in a Civil War type situation, and I use this expression very loosely, where the other side is readily recognisable, attempts to restore order must involve action by definition aimed at that group but that alone cannot amount to a Convention reason. It can however if the degree of force used is so manifestly excessive and disproportionate and it is clear that it is so directed by organs of the State or by groups whose such actions cannot but be seen as at worst tolerated by the State that there must be substantial grounds for concluding that each and every one of these appellants, given their particular circumstances, may be persecuted by reason of their being young Tamil males being sent back as they were at the time to Colombo in Sri Lanka.

Upon the evidence which has been laid before me and which I have accepted, it seems to me that despite the reservations I have made the violence was so excessive and was so directed and was exercised by or impliedly on behalf of the State that each of the appellant's fear was well-founded.

The absence of the Identity Cards for appellants 2 and 3 I should say I regarded as evidence of especial significance, but if I am wrong in taking it into account I would only sat that as is clear from my decision in the case of appellants 1, 4 and 5 its absence makes no difference to the ultimate decision in my view. The fact that each of the appellants may not necessarily have been personally persecuted does not matter. Indeed arrest and interrogation alone would not in my view amount to persecution.

Determination

Returning to Mr Riza's questions to me I find therefore:

(1)        The appellants all were entitled to political asylum at the time of the decision.

(2)        The circumstances that led to that decision have not since materially changed.

(3)        The decision reached by the Secretary of State on 20 August 1987 in relation to the first, fourth and fifth appellants and 1 September 1987 in respect of the second and third appellants was not in accordance with the law.

The appeal of each of the appellants therefore succeeds and is allowed. The appeals having succeeded I do not see that in these cases it is appropriate to do more that direct that each appellant be returned to the United Kingdom with the minimum delay, which I do. In relation to appellants two and three, they are entitled to indefinite leave to remain in the United Kingdom and must receive such leave upon their return.