QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of GEDARA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms Lisa Giovannetti (instructed by Treasury Solicitor) for the defendant
Crown Copyright ©
Mr Justice NEWMAN :
(1) A claim is only "clearly unfounded" if it is "bound to fail before an adjudicator" [now an immigration judge]. R (Razgar) v Secretary of State for the Home Department (CA)  EWCA Civ 840 or, on an alternative formulation if it "cannot on any legitimate view succeed", R (ZL and VL) v Secretary of State for the Home Department  EWCA Civ 25.
(2) The determination of whether or not a claim is "clearly unfounded" involves an objective test, "which a court can readily re-apply once it has the materials which the Home Secretary had" (R (ZL and VL) v Secretary of State for the Home Department).
(3) The test is plainly a high one and will be applied with "the degree of careful scrutiny appropriate to the seriousness of the subject matter".
(4) Assessment for certification is a "screening process". However, if the claim must clearly fail, certification is lawful "no matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation". (R (Yogathas) v Secretary of State for the Home Department  1AC 920).
The Factual Basis of the Claimant's Claim
"had to leave his service and take off from Sri Lanka due to the current security situation in the country where many of his team members were killed by unidentified gunmen and who was categorized as a high risk operative".
(1) As to the asylum claim, as a matter of established principle, there is no entitlement to refugee status because of risks arising out of service in the security forces, whether against an external or internal enemy;
(2) As to the ECHR claim, that the above principle should be held to be equally applicable to the facts constituting his human rights claim;
(3) As to both the asylum and human rights claims, the content of the claimant's case is insufficient to demonstrate a real risk of harm. It is submitted that the claimant does not have any arguable case that the Sri Lankan authorities would fail to meet its obligations to protect its citizens;
(4) The claimant has failed to put forward any good reason why he could not safely relocate internally within Sri Lanka.
The Case of Fadli
"The life of a soldier is a hazardous one. We are not persuaded that the Convention draws a distinction between, on the one hand, the position of soldiers engaged on a battlefield in combat against other soldiers observing the rules of war and, on the other hand, soldiers engaged on internal security duties against terrorists. Breaches of the rules of war are regrettably common. To allow soldiers' claims for asylum based on the failure by a State to provide practical protection to its soldiers against such an eventuality would we consider hinder the home state in providing the very protection for the generality of its citizens which the definition of refugee in the Convention assumes that the home state should provide. It would give the GIA and those like them the power, by adopting terrorist tactics, to weaken the power of the home state to provide protection for its citizens."
The court went on to add in paragraph 19:
"We do not accept Mr Blake's submission, for which he cited no authority, that serving soldiers in the circumstances of Algeria either do or could constitute a "particular social group" who is at risk of being "persecuted" for the purposes of the definition of refugee in the Convention."
"The position in our judgment is no different if the enemy is an internal one. If the state is to fulfil its duty to provide protection for its citizens up to a practical standard it will, in a civil war situation, use its police and soldiers for that purpose. It will not be in breach of its duty to its citizen policemen and citizen soldiers not to persecute them if it requires them to run a high risk of losing their life fighting in a civil war."
"Mr Leelarathna had to leave his service and take off from Sri Lanka due to the current security situation in the country where many of his team members were killed by unidentified gunmen and who was categorized as a high risk operative" (page 109 of bundle of documents).
"The Court observes that it is well established that the Convention applies in principle to members of the armed forces and not only to civilians. However, when interpreting and applying the rules of the Convention in cases such as the present one, the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces
In order to determine whether this provision was infringed in the instant case, it must first be ascertained whether the measure in issue amounted to an interference with the applicants' exercise of their right to "freedom to manifest [their] religion or beliefs".
The Court considers that in choosing to pursue a military career the applicants were accepting of their own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedom of members of the armed forces limitations which would not be imposed on civilians".
Conclusion on Fadli
The evidence as to sufficiency of protection
Conclusion on sufficiency of protection