Mendis v. Immigration Appeal Tribunal and Secretary of State for the Home Department
Mendis v Immigration Appeal Tribunal and Secretary of State for the Home Department
Court of Appeal (Civil Division)
 Imm AR 6
Hearing Date: 17 June 1988
17 June 1988
Political asylum -- whether appellate authorities were entitled to take into account an unsolicited letter from the High Commissioner of the appellant's home country asserting that the appellant would not suffer persecution if returned to that country -- whether such a letter was in law or factually irrelevant. HC 169 paras 16, 165: United Nations Convention relating to the status of Refugees (1951) and Protocol (1967) arts 1A(2), 33(1).
Held:Appeal from Mann J. The appellant, a citizen of Sri Lanka, entered the United Kingdom as a student. He then became an overstayer for eight years. He then married a British citizen and in 1984, application was made for leave on the basis of marriage. He separated from his wife, however, a few months after that marriage and when interviewed about his application, sought political asylum. He had not engaged in political activities in Sri Lanka. His claim was based on activities allegedly undertaken in the United Kingdom and the assertion that because of those activities he was well-known to the authorities in Sri Lanka who, viewing him with disfavour, would subject him to persecution if he were returned there. His case attracted much publicity and the High Commissioner for Sri Lanka wrote an unsolicited letter to the Home Office denying that the authorities in Sri Lanka had any interest in the appellant or that, in terms, he would face persecution on his return. Both the Chief Adjudicator and the Tribunal, in dismissing his appeal against the refusal of political asylum, took account of that letter, as had the Secretary of State. On application for judicial review it was argued that the letter was irrelevant. That argument was repeated in the Court of Appeal. Held: The letter was neither "irrelevant in law" nor "factually irrelevant." The appellate authorities had been entitled to take it into account, and their decisions could not be faulted on Wednesbury principles. The Court considered the proposition that a person who asserted that if he returned to his home country he would be obliged to speak out and give voice to unpopular opinions which would lead to persecution, could on that basis alone claim refugee status. Neill LJ left the matter open for future argument; Balcome LJ rejected the proposition; Staughton LJ thought that in certain cases such a person would qualify for refugee status, but considered the matter of no relevance in this appeal.
Cases referred to in the Judgment:Bugdaycay and ors v Secretary of State for the Home Department  AC 514:  Imm AR 250. Secretary of State for the Home Department v Sivakumaran and ors  2 WLR 92;  Imm AR 147. R v Immigration Appeal Tribunal and the Secretary of State for the Home Department ex parte Viraj Jerome Mendis (unreported, QBD 27 July 1987).
Counsel:I Macdonald QC and A Riza for the appellant; J Laws and P Havers for the respondents PANEL: Neill, Balcombe, Staughton LJJ
Judgment One:NEILL LJ: This is an appeal from the decision of Mann J dated 27 July 1987 whereby he dismissed applications for judicial review of a determination of the Immigration Appeal Tribunal (the Tribunal) dated 10 July 1986 and of a deportation order made by the Secretary of State on 18 December 1986. The appellant is Mr Viraj Jerome Mendis. The application to move the High Court for judicial review was made pursuant to the order of Nolan J dated 30 April 1987. In the course of the hearing of the appeal it became clear that leave to move for judicial review was limited by Nolan J to the application in respect of the deportation order. This court was satisfied, however, that Mann J dealt with the matter on the basis that there was also before him an application to review the determination of the Tribunal. Accordingly, with the consent of the Secretary of State, this court gave formal leave in respect of the determination of the Tribunal so that there should be no technical barrier in the way of a proper consideration of the two relevant decisions. It is important to underline at the outset the limited role which the courts can play in cases such as the present. On 21 August 1985 the Secretary of State initiated deportation proceedings against the appellant under s 3(5)(a) of the Immigration Act 1971 (the 1971 Act). The appellant then exercised his right to appeal to the adjudicator. The Chief Adjudicator heard the appeal which opened on 2 December 1985 and was concluded on 12 February 1986. I shall refer again later to the hearing before the Chief Adjudicator. By a decision dated 14 February 1986 the Chief Adjudicator dismissed the appeal. The appellant then appealed to the Tribunal. The appeal was heard on 3 July 1986 and was dismissed on 16 July 1986. By that stage the appellant's case had been considered by the two appellate tribunals which have been set up by Parliament to consider all the facts and to examine the exercise by the Secretary of State of the discretion given to him by statute. On 18 December 1986 the Secretary of State made a deportation order. The High Court has no power to act as a further appellate tribunal. It can only interfere by way of the remedy of judicial review in those cases where there has been some defect in the decision-making process. Such a defect will be established where the authority entrusted by Parliament with decision-making has taken into acocunt matters which ought not to be taken into account or, conversely, has refused to take into account or neglected to take into account matters which it ought to have taken into account. In addition the court may interfere where it concludes that no reasonable authority could have reached the conclusion which was reached in the relevant case. On the other hand it is to be remembered that, though the court can only interfere where there has been such a defect, the court is "entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines": see R v Home Secretary ex parte Bugdaycay  AC 514 at page 531 per Lord Bridge. Moreover, as Lord Templeman observed at page 537 in the same case "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". With this introduction I turn to the relevant facts as recorded at the hearings before the adjudicator and the Tribunal. The appellant was born on 1 April 1956. He is now aged 32. He is of Sinhala extraction. His parents, who are Roman Catholics, live in Colombo in Sri Lanka. He has no close relations in the United Kingdom. He came to the United Kingdom on 29 October 1973 in possession of an entry clearance as a student. He came in order to study at the University of Manchester Institute of Science and Technology for the purpose of obtaining a Bachelor of Science degree and possibly a higher qualification before returning to Sri Lanka. He was subsequently granted leave to remain until 29 October 1975 so that he could continue his studies. He made no further application, however, to remain beyond 29 October 1975, nor did he then return to Sri Lanka. Subsequent enquiries as to his whereabouts proved unsuccessful until 25 May 1984, over eight years later, when he was interviewed by officers of the Greater Manchester police. On 20 August 1984 solicitors acting on behalf of the appellant applied to the Home Office for leave for him to remain in the United Kingdom despite his overstay. The solicitors enclosed a copy of a marriage certificate showing that the appellant had married in Manchester on 25 July 1984. They requested that the appellant be granted an initial twelve months' extension of stay on the basis of this marriage. The appellant and his wife were requested to attend an interview at Manchester airport on 29 October 1984. Only the appellant appeared. He explained that he and his wife had separated and that she had declined to come with him. He said that he had not returned to Sri Lanka in 1975 because his money had run out, he had failed his second year examinations and had decided to work for a time to save money in order to return to university. He retook the second year examination in 1979, 1980 and 1981 though he had had to work at the same time as he was studying. His attempts to pass the examination had been unsuccessful. He had ceased working in or about 1981 and since that time had been supported by public funds. At this interview on 29 October 1984 the appellant was asked why he feared to return to Sri Lanka. According to the written determination of the Chief Adjudicator, to which we were referred, "He replied that it was well known that he opposed the present regime there and that the expression of the slightest left-wing viewpoint was sufficient to lead to his arrest. He added that even handing out political leaflets would lead to difficulties with the police and that he had not hidden his opposition to the present Sri Lankan government, attending demonstrations against the attacks on Tamils and writing magazine articles. The Sri Lankan High Commission Staff would have photographed him taking part in the demonstrations and also noted the content of the articles he had written". The appellant's wife was interviewed on 3 November 1984 when she confirmed that she and the appellant had separated in September and that she did not consider a reconciliation was possible. The decision to make a deportation order was made on 21 August 1985. Before this decision was made, however, the Minister of State at the Home Office had received a letter dated 4 June 1985 from the High Commissioner for Sri Lanka in London. We have not seen a copy of this letter but it is common ground that its terms were accurately reproduced in the determination of the Tribunal. The letter was as follows: "I have seen in the Asian Times that supporters of a Sri Lankan Mr Viraj Mendis has handed in a petition signed by 13,000 persons to the effect that if he is deported to Sri Lanka he will face imprisonment or worse because of his out-spoken support for the rights of the oppressed Tamil nation. I would like to take this opportunity to inform you that Mr Viraj Mendis is not wanted in Sri Lanka for any offence criminal or otherwise. He is free to go to Sri Lanka without any impediment. Yours sincerely C Monerawela High Commissioner" On 2 September 1985 the appellant appealed against the decision of the Secretary of State. The appeal before the Chief Adjudicator opened on 2 December 1985 when the appellant was represented by counsel. The Chief Adjudicator heard the evidence of the appellant, which he described as "comprehensive", and also the evidence of some six witnesses called on behalf of the appellant. He also had before him ninety-one letters submitted by individuals and organisations on behalf of the appellant, three Amnesty International reports, four publications of the Tamil Action Committee UK of the Elam Solidarity Campaign, four letters from persons acquainted with the appellant, a bundle of articles in a publication entitled Fight Racism, Fight Imperialism, four other press cuttings and a total of thirty-two letters from Members of Parliament and other public and political figures. In addition the Chief Adjudicator had an affidavit from the appellant's wife. At the conclusion of the evidence submissions were made to the Chief Adjudicator by counsel for the appellant and by Mr Andrews on behalf of the Home Office. The gist of these submissions is set out in the determination. It is clear that in reaching his conclusion the Chief Adjudicator reminded himself of the principle that as the possibility of persecution is a matter of supreme gravity the balance of probabilities test had to be applied, as he put it, "at its lowest level". Looking at the matter on this basis the Chief Adjudicator stated his finding in these terms: "Applying this standard of proof to the present case, I am not satisfied after reviewing the totality of evidence before me that the appellant would have a well-founded fear of persecution if removed on deportation to Sri Lanka for reasons of race, religion, nationality, membership of a particular social group or political opinion. I recognise that the outspoken espousal of the Tamil separatist cause, even outside Sri Lanka, can render a person liable to prosecution or other sanction under the emergency legislation presently in force in that country. Nevertheless the categoric assurance given by the High Commissioner for Sri Lanka to the Minister of State on 4 June 1985 that the appellant is not wanted in Sri Lanka for any offence criminal or otherwise and that he is free to go to Sri Lanka without any impediment must be accepted as an unequivocal guarantee of the appellant's immunity in respect of the acts he may have committed in this country. I am in no doubt that the Sri Lankan government would be fully aware of the serious consequences which could ensue if any Sri Lankan government agency sought to persecute the appellant in violation of the High Commissioner's undertaking. The appellant must, of course, realise that this immunity extends only to the acts he may have committed in this country and would afford him no protection whatsoever from any penal sanctions if he was to contravene the laws of Sri Lanka after his arrival there. I appreciate the appellant would not enjoy the same freedom to express his opinions in Sri Lanka as he has had in this country but I cannot regard the present restraints on free speech in Sri Lanka on the separatist issue as constituting persecution and I must accept that Sri Lanka is inherently a democracy where the rule of law applies. I have also taken full account of the reports of Amnesty International and the other evidence adduced at the hearing regarding the situation in Sri Lanka both at the time of the respondent's decision in August 1985 and, indeed, subsequently. It must be of significance that the communist party is not banned in that country. After taking all the factors into account, I cannot be satisfied even on the lower standard of proof applicable to such cases that the appellant would have a well-founded fear of persecution if he was removed on deportation to Sri Lanka." In the final paragraph of his determination the Chief Adjudicator expressed his conclusion as follows: "On the totality of the evidence before me, balancing the public interest to make a deportation order against the other factors in the appellant's case, I am satisfied on balance of probabilities that the respondent's decision to make a deportation order against the appellant is in complete accord with the law and immigration rules and that the Secretary of State has exercised his discretion correctly. This appeal is therefore dismissed." The appellant then appealed to the Tribunal. The appeal was heard on 3 July 1986. In their determination dismissing the appeal the Tribunal recited the facts and substantial passages from the decision of the Chief Adjudicator. At page eight of the determination they referred to an affidavit which had been put before them on behalf of the appellant relating to verbal reports which had been received from Amnesty International concerning the situation in Sri Lanka at that time. They then referred to the submissions of counsel and set out the three aspects of the case upon which counsel for the appellant had put particular stress, namely that the appellant had been in the United Kingdom for about twelve years, that there was enormous public support for him in Manchester and that there were fears for what would happen to him if he had to return to Sri Lanka. At page eleven of the determination they dealt with the question of asylum in these terms: "We have considered the documentary evidence before us, the adjudicator's record of proceedings and his determination, and we have considered the submissions made to us. Dealing first with the matter of asylum and adopting the same standard of proof as did the adjudicator we, as he did, attach considerable importance to the letter from the Sri Lankan High Commissioner. We do not accede to the submission of Mr Blake (counsel for the appellant) that it amounts to no more than that there has been no request for extradition. It is an unequivocal statement that on 4 June 1985 (some two months before the decision to deport the appellant) he was not wanted in Sri Lanka for any offence criminal or otherwise. We see no reason to suspect that this statement is untrue, or that it does not mean what it says. It is true that the appellant will not probably enjoy the freedom to express his views in Sri Lanka that he has enjoyed in this country, but this by itself does not amount to persecution. Having taken into account all the reports on the situation in Sri Lanka which have been put before us, the evidence given before the adjudicator, and the adjudicator's estimation of it, we have come to the same conclusion as did the adjudicator and the Secretary of State that even on the lower standard of proof applicable to cases of asylum, the appellant has failed to establish that he would have a well-founded fear of persecution should he be removed to Sri Lanka on deportation." The determination concluded with these words: ". . . we have come to the conclusion that both the decisions of the Secretary of State and the adjudicator were reasonable and in accordance with the immigration rules and involve no wrong exercise of discretion. For the reasons which we have attempted to set out above, we have come to the conclusion that we would not have exercised our discretion in any way differently. The appeal is dismissed." A few months later, on 18 December 1986, the Secretary of State made the deportation order. This order was not accompanied by reasons but our attention was drawn to a letter dated 8 December 1986 from the Minister of State at the Home Office to the Member of Parliament within whose constituency the appellant then was. This letter was written in reply to letters from the Member dated 18 July and 8 October 1986. The letter from the Minister contained the following paragraphs: "As you said in your letter, Mr Mendis' appeal against deportation was dismissed by the Tribunal on 16 July. I enclose a copy of the determination. You will see that every aspect of Mr Mendis' case has been examined in great detail and with scrupulous care both by the Chief Adjudicator in the first instance and then by the Tribunal, and that the independent appellate authorities have endorsed the decision to deport Mr Mendis. We have subsequently reconsidered the whole case in the light of your own representations and of the many others we have received on Mr Mendis' behalf. I think it is fair to say that all these representations are primarily concerned about the same two areas which you yourself identified in your letter, namely the long duration of Mr Mendis' residence in the United Kingdom and the possibility of his being persecuted in the event of his return to Sri Lanka. We have therefore been giving particular attention to these two points. . . . applying the same criteria to his case as I would to that of any other person found living here unlawfully after many years, I find that Mr Mendis, despite his lengthy residence, has put down no deep roots of the kind which would enable me to conclude that he should be allowed to remain here. This would be immaterial, however, if there were any merit in Mr Mendis' asylum claim. Turning now to that aspect of the case, the crux of the issue appears to be whether one accepts that the assurance from the Sri Lankan High Commissioner -- that Mr Mendis is not wanted in Sri Lanka for any offence criminal or otherwise and that he is free to go to Sri Lanka without any impediment -- constitutes a valid guarantee of Mr Mendis' safety. I am myself prepared to place complete confidence in this assurance, as was the Chief Adjudicator and the Immigration Appeals Tribunal. In considering the claim for asylum, it must surely be relevant that Mr Mendis is not himself a Tamil and that the extent of his participation in political opposition to the Sri Lankan government, and his willingness to be identified in that cause, increased quite disproportionately after he had been obliged by circumstances to make application for political asylum. I can find no reason to disagree with the conclusion of the appellate authorities that Mr Mendis has not established a well-founded fear of persecution if he is returned to Sri Lanka." On 30 April 1987 Nolan J gave leave to move for judicial review. I have already explained that we are proposing to deal with the matter on the basis that leave was given both in relation to the determination of the Tribunal and in relation to the deportation order itself dated 18 December 1986. In each case the relief sought is an order to quash the decisions. When the matter came before Mann J in July 1987 counsel for the appellant submitted that when the decisions which were impugned were reached no account should have been taken of the letter of 4 June 1985, and, in the alternative, that if it were permissible to take the letter into account the manner in which it was so taken was irrational in a Wednesbury sense. Mann J dealt with the submission of irrelevancy very shortly. He said this: "First, was there here taken into account an irrelevant consideration; that is to say, the terms of the High Commissioner's letter? After reflection, I cannot understand any basis for saying that the letter was an irrelevant consideration in the process of deciding to make a deportatioin order. It is a letter from the High Commissioner of a Commonwealth country relating to the person in question in the proceedings. I do not think I need say any more than that. It is, plainly, in my judgment, a matter which the Secretary of State and also the adjudicator and in turn the Tribunal were entitled to take into account." The judge next turned to the question of irrationality. He referred to the propositions which counsel had put forward in support of his argument and dealt with them as follows: [Counsel] at first said that it is dangerous to attach weight to the observations from the state from which the applicant claims to be a refugee. Second, he said that the terms of the letter do not bear upon the issue refugee or not. Third, he said that reliance on the letter marked an abdication from the duty to make an objective decision as to the fear of persecution . . . Fourth, says [counsel], the letter does not deal with treatment at the hands of unmanageable security forces or from local Sinhalese who might take exception to some of their race who supported the Tamil cause. As to the first proposition, it is manifest that the letter has dangers. The State of Sri Lanka is an interested party. That is so plain and manifest that it must have been obvious both to the Immigration Appeal Tribunal and to the Secretary of State when deciding what weight to attach to it. As to the second proposition, [counsel] says that the letter deals with prosecution not persecution, which is a fact and material under Article 1 of the Convention. Further, it deals with ability to go to Sri Lanka. That says [counsel], is not material. What is material is willingness to go there. I think, with respect to [counsel], that the point is artificial. I think the letter could be construed as indicating that there would be no persecution. Persecution was certainly before the Secretary of State: see paragraph 3 of the letter from the Minister of State dated 8 December 1986, to which I have already referred. As to the third proposition, it is sufficient to say that neither the Tribunal nor the Secretary of State relied upon the letter to the extent which, in my judgment, marked an abdication in their respective duties. The Tribunal attached considerable importance to it. The Secretary of State exercised a judgment upon it, and in the words of the Minister of State: 'was prepared to place complete confidence in the assurance'. As to the fourth proposition, both the Immigration Appeal Tribunal and the Secretary of State had before them material on the situation in Sri Lanka being material which emanated from Amnesty International. In sum I agree with [counsel for the respondents], that once it is accepted, as I do, that the letter is relevant to the decision to be taken, then the weight to be attached to it is for the decision taker unless the attribution of weight be irrational. I cannot here see any attribution of weight which is irrational." In this count the decision of the Tribunal and of the Secretary of State were challenged on three grounds: (a) That the letter of 4 June 1985, which had been taken into account by the decision makers, was irrelevant as a matter of law. (b) That the letter of 4 June 1985 was factually irrelevant. (c) That the reliance placed by the decision makers on the letter of 4 June 1985 was irrational in a Wednesbury sense. Before I turn to deal with these arguments it is first necessary to refer to the relevant Immigration Rules and to the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol). I turn first to the Statement of Changes in Immigration Rules (1983) (HC 169) (made under s 3(2) of the Immigration Act 1971). Rule 16 of HC 169 (which is in the same terms as rule 153) provides: "Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (see Cmd 9172 and Cmnd 3906). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments." Rule 165 provides: "In accordance with the provisions of the Convention and Protocol relating to the Status of Refugees, a deportation order will not be made against a person if the only country to which he can 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." I come next to the United Nations Convention relating to the status of Refugees dated 29 July 1951 as amended by the Protocol dated 16 December 1966. Article 1A(2) of the Convention (as amended) provides that the term "refugee" applies to any person who -- ". . . owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence . . . is unable to, owing to such fear, is unwilling to return to it . . ." Article 33(1) of the Convention provides: "No contracting state shall expel or return ('Refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The United Kingdom has acceded to the Convention and Protocol, and accordingly their provisions have for all practical purposes been incorporated into the law of the United Kingdom. The provisions of the immigration rules and of the Convention and Protocol to which I have just referred were considered by the House of Lords in R v Home Secretary, ex parte Sivakumaran  2 WLR 92. At page 98 Lord Keith of Kinkel expressed his opinion as to the meaning of a well-founded fear of persecution in these terms: "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  1 WLR 987, this House had to construe s 4(1)(c) of the Fugitive Offenders Act 1967, which requires that a person will not 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 reason of his race, religion, nationality or political opinions.' Lord Diplock said at page 994:
'My Lords, bearing in mind the relative gravity of the consequences of the Court's expectation being falsified either in one way or 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 magistrates 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 a fugitive on his return which justifies the Court in giving effect to the provisions of s 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."It is also necessary to bear in mind the words of Lord Templeman in R v Home Secretary, ex parte Bugdaycay  AC 514, (and reaffirmed by him in Sivakumaran at page 100) where he said at page 535: "Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the immigration authorities in pursuing enquiries 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." I come now to the submissions which were put forward on behalf of the appellant in the present case. The first submission was that the two relevant decisions were flawed because by taking account of the letter dated 4 June 1985 the decision-maker had taken account of something which was irrelevant as a matter of law. In support of this submission it was argued that any communication from the government of the country from which the applicant for refugee status claims to be a refugee is so likely to be unreliable that as a matter of law it must be disregarded. In this context our attention was drawn to the fact that, as a matter of practice, the United Kingdom government does not seek the views of the foreign government concerned in an asylum case. It was submitted that this was the correct practice and that it was in accordance with the opinion of the High Commissioner for Refugees as evidenced by the letter from Miss Irene Khan dated 29 April 1987 (page 96 of the bundle). By parity of reasoning, it was submitted, any information which was provided by the foreign government in an unsolicited communication should also be disregarded. I am quite unable to accept this submission. I can well understand that as a matter of practice the United Kingdom government does not seek the views of the foreign government, but if unsolicited information is provided I can see no sensible basis for saying that such information should as a matter of law be treated as irrelevant. It is to be observed that in her letter dated 29 April 1987 Miss Khan, having given the view of the High Commissioner for Refugees as to the seeking of information continued as follows: "Where authorities of a country of origin provide unsolicited information on the asylum application, then such information should not simply be taken at its face value. Given the nature of allegations made by an asylum applicant vis a vis his country of origin, it would not be appropriate for the competent authorities determining refugee status to accept a statement by the country of origin in the abstract. It would be incumbent upon the competent authorities to evaluate such a statement in the light of the situation prevailing in the country of origin, the laws of that country and particularly the manner in which they are applied, and the judicial and legal remedies available to an individual such as the applicant." The second submission advanced on behalf of the appellant was to the effect that the letter of 4 June 1985 was "factually irrelevant". Thus it was said: (a) that though the letter from the High Commissioner of Sri Lanka was capable of constituting an assurance as to the reaction of the authorities in Sri Lanka to the appellant's activities whilst in the United Kingdom the assurance did not and could not cover the fear which the appellant had of "persecution" at the hands either of Army or other security forces who were out of control or from groups of Sinhalese who might treat the appellant as a traitor to persons of his race; and (b) that the letter provided no assurance at all against the "persecution" to which the appellant feared he might be subjected if he returned to Sri Lanka and continued to express his political views on his return in the same way as he had done in this country. It is clear that both before the Chief Adjudicator and before the Tribunal the submissions on behalf of the appellant were mainly directed to the fear of persecution arising from his activities in this country. Nevertheless we allowed the argument for the appellant to be developed on a wider basis before us, though we ruled that we were not prepared to entertain submissions which were based on particular provisions of Sri Lankan legislation or regulations. The reason why we made this restriction was quite simple. No argument was addressed to Mann J on the basis of any particular law against which the appellant might offend if he returned to Sri Lanka. In order to deal adequately with this aspect of the case it would have been necessary to consider in detail, and perhaps with the assistance of expert evidence, the terms of the relevant legislation or regulations, and then to consider whether a person who offended against those provisions could claim to be a refugee under the Convention. With all due respect to counsel I do not find the phrase "factually irrelevant" very helpful. I would venture to suggest that the thrust of the submission was that, even if the assurance could be treated as a valid assurance about official reaction, it did not go far enough and was therefore incomplete. In other words, it could be argued, the letter of 4 June did not provide any basis for treating the appellant's fear of persecution by, for example, the security forces or groups of Sinhalese, as other than well-founded. Nor did it deal with the question of what might happen if on his return to Sri Lanka the appellant continued to express political opinions similar to those voiced by him in England. Counsel for the appellant attached great importance to the fact that in the letter dated 8 December 1986 from the Minister of State the assurance from the High Commissioner was described as "the crux of the issue" (page 35 of the bundle). A careful reading, however, of the letter and of the determination of the Tribunal makes it clear that all the material had been considered and reconsidered before a decision was reached. Clearly the letter from the High Commissioner played a most important part in the decision-making process, but I find it impossible to conclude that because importance was given to the letter there was no adequate basis for the conclusion that the appellant had failed to establish a well-founded fear of any persecution. The fact that much of the evidence was concentrated on the appellant's activities in this country meant that much less attention was directed to the other "fears" which were more fully explored before us. It is also to be observed that the Chief Adjudicator recorded the fact that it was not the appellant's case that he would be "assaulted by a random group of citizens". Furthermore, in a passage which I have already cited, the Tribunal recognised that the appellant would probably not enjoy the freedom to express his views in Sri Lanka that he had enjoyed in this country and expressed the opinion that "this by itself does not amount to persecution". As part of his argument on this aspect of the case it was submitted by counsel on behalf of the Secretary of State that the Convention is not designed to confer refugee status on those who face persecution by reason of events which lie in the future, and that therefore a person cannot claim protection on the ground that if he were returned to the foreign state his freedom to express his political views would be restricted. I see the force of this submission but I do not find it necessary to reach a final conclusion about it in the present case. It is to be observed that article 33(1) of the Convention lists "race, religion, nationality, membership of a particular social group or political opinion" as the five grounds on account of which an individual's life or freedom might be threatened if he were expelled or returned. It can be said that a distinction can be drawn between these grounds because whereas a man cannot change his race and may only be able to change his nationality with great difficulty he has a choice whether or not to practice his religion and (a fortiori) whether or not to voice any political opinion. Accordingly, so the argument would run, a man cannot claim to be a refugee on the basis of a fear of persecution arising from some future activity in which he can refrain from taking part. For my part, however, I propose to leave for decision on another occasion the question whether there may not be cases where a man of settled political conviction may be able to claim refugee status because it would be quite unrealistic to expect him, if he were returned to a foreign country, to refrain from expressing his political views for ever. In the present case, as I have already indicated, I do not consider that it is necessary to reach a conclusion on this point. It is quite plain that the evidence and the argument were mainly directed to what the appellant had done in this country, but it is also clear that the matter was considered in the round and that there was material on which the relevant decision makers could properly come to the conclusion that the appellant had no well-founded fear of persecution. I therefore reject the second submission put forward on behalf of the appellant. The third submission was to the effect that on the material before the Tribunal and the Secretary of State the decisions were irrational or unreasonable in Wednesbury terms. For my part I find this submission wholly unacceptable. It is to be remembered that a decision as to refugee status involves a value judgment. Clearly there are cases where the facts are so clear that a decision that a particular individual was not a refugee could be demonstrated to be clearly unreasonable or even perverse. An examination of the papers in the present case leads to no such conclusion. It has not been established that the decision-making process was flawed in any material respect or that the decisions are otherwise open to review by the courts. For my part I would dismiss the appeal.
Judgment Two:BALCOMBE LJ: I have had the advantage of reading in draft the judgment of Neill LJ and I gratefully adopt his exposition of the facts and of the principles of law which are applicable to this case. The sole ground of appeal argued before us was that the decisions of both the Tribunal and the Secretary of State were flawed because of the reliance they placed on the letter of 4 June 1985 from the High Commissioner for Sri Lanka to the Minister of State at the Home Office. It will be convenient if I set out again the relevant terms of that letter: "I have seen in the Asian Times that supporters of a Sri Lankan Mr Viraj Mendis has handed in a petition signed by 13,000 persons to the effect that if he is deported to Sri Lanka he will face imprisonment or worse because of his out-spoken support for the rights of the oppressed Tamil nation. I would like to take this opportunity to inform you that Mr Viraj Mendis is not wanted in Sri Lanka for any offence criminal or otherwise. He is free to go to Sri Lanka without any impediment." Mr Macdonald, for the appellant, submitted: (a) that the letter was legally irrelevant; (b) that the letter was factually irrelevant; and (c) that too much weight was given to the letter. I will deal with each of these submissions in turn. (a) Legal irrelevance This submission depended in part upon the assertion that the objects of the 1951 Convention and the 1967 Protocol could only be effective if a refugee felt free to claim protection, and that he would not do so if he knew that the government of the country from which he had fled would be approached by the host country for information as to his claim. This may well be true, and doubtless is the explanation of the United Kingdom practice of not seeking the views of the foreign government concerned, but it cannot make an unsolicited statement from the foreign government legally irrelevant. Indeed, although the point is not before us in this case, I doubt whether the invited views of the foreign government could be considered legally irrelevant, although the dangers of placing reliance upon any such views are obvious. In my judgment the Tribunal and the Secretary of State were both as a matter of law entitled to take into account the views expressed in the letter of 4 June 1985. (b) Factual irrelevance The basis of this submission was that the letter was incomplete; it did not deal with a number of matters with which the appellant was legitimately concerned. These matters, according to Mr Macdonald, were: (i) Dangers emanating from the lack of discipline within the security forces in Sri Lanka; (ii) Danger of persecution from the local Sinhalese population who might regard the appellant as a traitor; (iii) The possibility of persecution if, upon his return to Sri Lanka, the appellant continued to express views politically unacceptable to the authorities there. The appellant's case before the adjudicator and before the Tribunal was almost entirely based upon his fear of persecution arising from his activities in this country. Nevertheless these other matters were considered and rejected. Thus, the adjudicator said: "It was not, however, the appellant's case that he would be mistaken for a Tamil or assaulted by a random group of citizens." Before the Tribunal the appellant's counsel submitted that even if the Sri Lankan government did not wish to prosecute the appellant, one did not know what view the security forces would take, even at a low level, because it appeared that the forces were not entirely under the government's control. The Tribunal then record the submission in answer by counsel for the respondent in the following terms: "With regard to the suggestion that the appellant might be ill-treated by security forces who were out of control of the government, this possibility was one which everyone had to face in Sri Lanka and could not amount to persecution by the government." The Tribunal concluded: "Having taken into account all the reports on the situation in Sri Lanka which have been put before us, the evidence given before the adjudicator, and the adjudicator's estimation of it, we have come to the same conclusion as did the adjudicator and Secretary of State that even on the lower standard of proof applicable to cases of asylum, the appellant has failed to establish that he would have a well founded fear of persecution if he were returned to Sri Lanka." The Determination and Reasons of the Tribunal were before the Secretary of State when he made his deportation order of 18 December 1986, and are referred to in the letter of 8 December 1986 from the Minister of State at the Home Office. Thus it is apparent that, although the letter of 4 June 1985 does not refer to potential danger to the appellant from either the security forces or the local Sinhalese population, these matters were considered by both the Tribunal and the Secretary of State, and their omission from the letter is of no significance. The possibility of the "persecution" of the appellant if, on his return to Sri Lanka, he were to continue to express political views unacceptable to the Sri Lankan government raises wider issues which are potentially of some general importance. As Neill LJ has said, there was no evidence before the court below, and therefore no argument addressed on the basis of any particular law against which the appellant might offend if he returned to Sri Lanka and continued there to express his political views as he had recently done in this country. This question, therefore, comes down to the general one: can a person have a "well-founded fear of being persecuted for reasons of . . . political opinion" in the country of his nationality, on the basis that if he returns to his native country, and then speaks out, he will offend against that country's regulations? The Tribunal answered this question in the negative sense: "It is true that the appellant will not probably enjoy the same freedom to express his views in Sri Lanka that he has enjoyed in this country, but this by itself does not amount to persecution." The Office of the United Nations High Commissioner for Refugees has published (Geneva, 1979) a Handbook on procedures and criteria for determining refugee status. This handbook has no legal status in this country -- see R v Home Secretary, ex parte Bugdaycay  AC 514, 524F; R v Home Secretary, ex parte Sivukumaran  2 WLR 92, 104A -- but its provisions have on occasion been cited with approval -- see Macdonald Immigration Law and Practice (2nd ed) p 270 and cases there cited -- and deserve proper consideration. Paragraph 82 of the Handbook is in the following terms: "As indicated above, persecution 'for reasons of political opinion' implies that an applicant holds an opinion that either has been expressed or has come to the attention of the authorities. There may, however, also be situations in which the applicant has not given any expression to his opinions. Due to the strength of his convictions, however, it may be reasonable to assume that his opinions will sooner or later find expression and that the applicant will, as a result, come into conflict with the authorities. Where this can reasonably be assumed, the applicant can be considered to have fear of persecution for reasons of political opinion." With all respect to the authors of the Handbook, I regret I am unable to agree with this view. It seems to me that Mr Laws, for the respondents before us, was correct when he said that the purpose of the 1951 Convention (as amended by the 1967 Protocol) is to protect people against the risk of being persecuted for reasons of political opinion: it is not a guarantee of world-wide freedom of speech. In my judgment a person is not at risk of being persecuted for his political opinions, if no events which would attract such persecution have yet taken place. If this were not so, a person could become a refugee as a matter of his own choice; all he would have to do would be to establish the following two propositions: (1) If, when I return to my native country, I speak out, I will be persecuted; (2) I will speak out. This is tantamount to saying that a person who says he proposes to invite persecution is entitled to claim refugee status. That I do not accept. Accordingly the fact that the letter of 4 June 1985 made no mention of the attitude which the authorities in Sri Lanka would take towards the appellant, should he continue to express his political views on his return, was not a matter which rendered that letter "factually irrelevant". In the very nature of things the Sri Lankan authorities would be unlikely to give the appellant carte blanche to express any views he chose, regardless of whether they contravened any of that country's laws. (c) The weight attached to the letter This was a matter for the relevant decision makers -- in this case the IAT and the Secretary of State -- not for the court. Unless we can go so far as to say that it was perverse for the decision makers to place the weight they did on the letter of 4 June 1985, there is no basis for the court to interfere with the decision on this ground. I am quite unable to say that what was done here was perverse. I, too, would dismiss the appeal.
Judgment Three:STAUGHTON LJ: For the reasons given by Neill and Balcombe LJJ, I agree that this appeal must be dismissed. I would add only a brief word on the point about fear of persecution as a result of future conduct. In my judgment it may not be right to say that this can never be relevant to a claim for refugee status. If a person has such strong convictions, whether on religious or other grounds, that he will inevitably speak out against the regime in his country of origin, and will inevitably suffer persecution in consequence, it may be that he should properly be treated as a refugee. In such a case it could be questioned whether his future conduct would be voluntary in any real sense. But I see no ground for believing that this case is in that class. I too would dismiss this appeal.
DISPOSITION:Appeal dismissed Leave to appeal to the House of Lords refused
SOLICITORS:Winstanley-Burgess; Treasury Solicitor
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