The three Tamil applicants had left the area of Sri Lanka controlled by the Tamil Tigers and gone to live in Colombo. It was asserted that in Colombo they had a well-founded fear of persecution because they were young male Tamils and were therefore subject to security round-ups of such people which occurred when the security forces were faced with Tamil terrorist activity in the city. When rounded up they were subjected to ill-treatment which amounted to persecution. The adjudicators and the Tribunal had rejected the proposition that young male Tamils as a class and for that reason alone all had a well-founded fear of persecution. The Tribunal had concluded that in Colombo ill-treatment of those rounded up had significantly declined and was not endorsed by the government.
Held: To make good a claim to asylum as a refugee, it is necessary for the applicant to show, to the standard of reasonable likelihood or of real risk, that he had a well founded fear that if he had remained in or was returned to his country of origin, that he would be persecuted for one or more of the Convention reasons. The Convention definition raises a single composite question. In asylum cases, appellate courts were part of the decision process, and were not restricted in their abiliity to review a decision in the same ways as they might be in other cases. In asylum appeals, the position is to be considered by reference to the circumstances at the date of the hearing in question. The possibility of ill-treatment when rounded up does not amount to persecution.
Simon Brown LJ said: ‘In sum, persecution is most appropriately defined as the sustained or systematic failure of state protection in relation to one of the core entitlements which has been recognised by the international community. The types of harm to be protected against include the breach of any right within the first category, a discriminatory or non-emergency abrogation of a right within the second category, or a failure to implement a right within he third category which is either discriminatory or not grounded in the absolute lack of resources.
The ‘first category’ there referred to those rights from which no derogation can ever be permitted, even in terms of compelling national emergency, rights such as freedom from the arbitrary deprivation of life, and protection against torture or cruel, inhuman or degrading punishment or treatment. Clearly it would include protection against ill-treatment of the sort suffered by some Sri Lankan detainees in the past.’
Judges:
Nourse LJ, Staughton LJ, Simon Brown LJ
Citations:
[1996] Imm AR 97, [1995] EWCA Civ 16
Links:
Statutes:
European Convention on Human Rights
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Immigration Appeal Tribunal on the Application of Paramsothy Sivakumar Admn 22-Jan-2001
The applicant sought a judicial review of a refusal by the IAT of leave to appeal a refusal of asylum. He was a Tamil. He had been coerced into assisting the Tamil Tigers. The Special Adjudicator had considered only one possible convention reason, . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – Rashid, Regina (on the Application Of) v Secretary of State for Home Department Admn 22-Oct-2004
The claimant sought asylum, being an Iraqi Kurd. He was not told by the defendant of its policy not to require internal relocation within the Kurdish autonomous zone. The policy had been applied for the benefit of others, as was revealed only in . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Demirkaya v Secretary of State for Home Department CA 23-Jun-1999
Whether an asylum applicant had a well founded fear of persecution if he returned home, is always a question of fact and degree, and could not be made a question of law. Even so where there was a clear risk of repeated rather than single beatings if . .
See Also – Secretary 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 . .
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .
Lists of cited by and citing cases may be incomplete.
Immigration
Updated: 20 December 2022; Ref: scu.180023