Regina v Home Secretary, ex parte Sivakumaran: HL 16 Dec 1987

The House of Lords were concerned with the correct test to be applied in determining whether asylum seekers are entitled to the status of refugee. That in turn gave rise to an issue, turning upon the proper interpretation of Article 1.A(2) of the Convention.
Held: When deciding whether an asylum applicant’s fear of persecution was well-founded, it was sufficient for a decision-maker to be satisfied that there was a reasonable degree of likelihood that the applicant would be persecuted for a Convention reason if returned to his own country. In asylum cases and cases involving Articles 2 or 3 of the ECHR, the risk to the claimant only has to be established to the extent of showing a reasonable likelihood of persecution or treatment amounting to a breach of one of those Articles. The task of the court is to ascertain the real reason for the treatment, the reason which operates on the mind of the alleged discriminator. This may not be the reason given, and may not be the only reason, but the test is an objective one.
Lord Templeman: ‘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 enquiries abroad, in consulting official and unofficial organisations and in making value judgements. 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.’
Lord Keith: ‘The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law.’ and ‘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.’ The Home Secretary is entitled to obtain information from many sources including diplomatic, official and other channels.
Lord Goff: ‘But once it is accepted that the Secretary of State is entitled to look not only at the facts as seen by the applicant, but also at the objective facts as ascertained by himself in relation to the country in question, he is, on the High Commissioner’s approach, not asking himself whether the actual fear of the applicant is plausible and reasonable; he is asking himself the purely hypothetical question whether, if the applicant knew the true facts, and was still (in the light of those facts) afraid, his fear could be described as plausible and reasonable. On this approach, the Secretary of State is required to ask himself a most unreal question. His appreciation is in any event likely to be coloured by his own assessment of the objective facts as ascertained by him; and it appears to me that the High Commissioner’s approach is not supported, as a matter of construction, by the words of the Convention, even having regard to its objects and to the travaux preparatoires. In truth, once it is recognised that the expression ‘well-founded’ entitles the Secretary of State to have regard to facts unknown to the applicant for refugee status, that expression cannot be read simply as ‘qualifying’ the subjective fear of the applicant – it must, in my opinion require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded.’

Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Templeman and Lord Griffiths, Lord Goff
[1988] AC 958, [1987] UKHL 1, [1988] 1 All ER 193, [1988] Imm AR 147, [1988] 2 WLR 92, [2002] INLR 310
Geneva Convention (1951) and Protocol (1967) relating to the Status of Refugees, European Convention on Human Rights 2 3
England and Wales
ApprovedRegina v Governor of Pentonville Prison, Ex parte Fernandez: Fernandez v Government of Singapore HL 1971
Test for police protection need
The court considered the degree of risk to an individual which should give rise to a duty on the police to protect him under article 2.
Held: Lord Diplock said: ‘My Lords, bearing in mind the relative gravity of the consequences of the court’s . .

Cited by:
CitedEuropean Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
CitedSecretary of State for Home Department v Ravichandran CA 6-Jun-1997
Application for leave to appeal granted.
Held: This was a case where the relationship of the Tribunal to the Special Adjudicator can and should be considered. ‘I have indicated some of the difficulties which may arise. There is no doubt that . .
CitedRegina v Secretary of State for the Home Department Ex Parte Abdi, Same v Same, Ex Parte Gawe HL 15-Feb-1996
Two Somali nationals were refused asylum and sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom’s obligations under the Geneva Convention of 1951.
Held: Adjudicators are . .
CitedRegina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
CitedRegina v Makuwa CACD 23-Feb-2006
The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
CitedAli v Secretary of State for the Home Department CA 3-May-2006
The applicants sought asylum. Their child had a right of residence as a European citizen.
Held: The applicants could not rely upon their child’s right of residence to establish one for themselves. . .
CitedRegina v Fregenet Asfaw HL 21-May-2008
The House considered the point of law: ‘If a defendant is charged with an offence not specified in section 31(3) of the Immigration and Asylum Act 1999, to what extent is he entitled to rely on the protections afforded by article 31 of the 1951 . .
CitedLondon Borough of Lewisham v Malcolm HL 25-Jun-2008
The tenant had left his flat and sublet it so as to allow the landlord authority an apparently unanswerable claim for possession. The authority appealed a finding that they had to take into account the fact that the tenant was disabled and make . .
CitedRT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.182470