England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21 March 2007

1. MR JUSTICE CALVERT SMITH: This is a renewed application for permission to bring judicial review of a decision of September 2006, whereby the Secretary of State certified the claimant's claim for asylum. The claimant is from Sri Lanka.
2. No serious argument has today been addressed to the court suggesting that the original decision itself was so flawed that it is susceptible to review. However, it is said that events have moved on considerably since then, as witnessed by the defendant's own documents and documents of which it is clearly aware, since they are published or quoted from by the defendant on its own website, that in spite of the fact that the original decision, and indeed the decision of the single judge who refused permission on the papers, are hard to attack, that permission should be given today to bring judicial review proceedings before the court.
3. In addition the court has been informed that there are proceedings before the IAT which have been adjourned following argument in December of 2006, and an expected judgment in January, until April of this year in which it is hoped that a country guidance decision will be forthcoming. It is perfectly clear, and it is not disputed by the defendant, that the situation in Sri Lanka has been deteriorating since the middle of 2006 at least, and that the reports now before the defendant indicate that things are much worse potentially at least for people in the position of Mr Kameskumar than they were.
4. The three matters, in particular, which the claimant relies on, which are all linked, are the fact that in 2006, at about the time when things were starting to deteriorate, he was in fact detained on suspicion of membership of the LTTE of which he has in fact never been a member. What matters is not the fact of whether he was a member or the perception of the authorities that he may have been, since anyone even suspected of membership may be at risk of ill-treatment or torture at the hand of the state authorities.
5. Secondly, it is said that the bringing into force following the breakdown of the cease-fire, of the Prevention of Terrorism Act in Sri Lanka means that he will be more liable, rather than less, to re-arrest if he returns to Sri Lanka, and even to prosecution and conviction for offences of failing to give information, rather apparently analogous to the provisions of the Terrorism Act 2006 in this country. While that may be all right before he was ever prosecuted and convicted he would now be at risk of the same sort of ill-treatment, or worse, that he suffered in the summer of 2006 before his arrival here.
6. Third, it is said that torture is now systematic. That is a fair inference from the contents of the various reports that have been compiled in May 2006 up until February of this year.
7. The defendant submits that for all that the situation has undoubtedly changed, nothing has been produced which suggests that the original decision was wrong and no sufficient information, leaving aside the letter to which I will refer in a moment which was written on 16 March last , to indicate how it is said that the defendant should look again at the position in the light of the new circumstances as they refer to this claimant. His claimed links to the LTTE are so minor that they are right at the very bottom rung of any type of alleged involvement, being related apparently to his membership of a sports club which had a Tamil membership and some LTTE membership. When there was a funeral of an LTTE person, this defendant on two occasions helped to line the route of the funeral cortège.
8. In summary the defendant says, "Well it is, in effect, any Tamil", as is set out in the extract of reports and authorities provided to me this morning by Miss Jegarajah. If it is in fact any Tamil, and simply a heightened risk of various things which may occur, then effectively what is being sought is a complete ban on the return of any Sri Lankan asylum seeker, and indeed, almost as a corollary, of the grant of asylum on a permanent or temporary basis to any such person.
9. In my judgment there is no arguable case here that the September 2006 decision could possibly be the subject of judicial review. This is not the sort of case envisaged in Launder. Here there are ongoing proceedings and indeed there is a new letter before the Secretary of State which everybody concedes there has not really been sufficient time to reply to, in particular to consider the new circumstances in the light of the individual facts of Mr Kameskumar's case.
10. I encouraged counsel to think whether, in the circumstances, it would be appropriate to adjourn these proceedings to see whether in due course it was necessary even to continue the application for judicial review, or, in the event of an unfavourable reply, to issue further proceedings based on the unfavourable reply. She declined the invitation and accordingly I am asked to make the decision now as to permission, which I do not grant. This application is refused.
11. MR HUTTON: Thank you, my Lord. My instructions in this case are to ask for the costs of the acknowledgment of service, if for no other reason than the case has changed considerably since the acknowledgment of service. It is not entirely clear how much use that acknowledgment of service has been of use to yourself, my Lord, and further costs have been expended recently, which we are not asking for. In those circumstances we would ask for --
12. MR JUSTICE CALVERT-SMITH: I do not think it is an appropriate case to grant that particular order. I have no doubt that the Secretary of State is actually considering the Sri Lankan position generally and eagerly awaiting the Country Guidance case.
13. MR HUTTON: Speaking again, my Lord, without instructions, no doubt that is the case.
14. MR JUSTICE CALVERT-SMITH: If he is not, perhaps he would accept my, among others, invitation, to do so, but I am sure he is. In the event that we are only having to wait less than a month, or something of that order, for further guidance on the situation generally, so far as judges' positions are concerned -- immigration judges and the like -- then no doubt the Home Secretary will think carefully before taking any precipitate action in respect of this person.
15. MR HUTTON: I will, of course, pass those comments on, my Lord.
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MR HUTTON: Thank you, my Lord. My instructions in this case are to ask for the costs of the acknowledgment of service. If, for no other reason, than the case has changed considerably since the acknowledgment of service. It is not entirely clear how much use that acknowledgment of service has been to yourself, my Lord, and further costs have been expended recently, which we are not asking for. In those circumstances we would ask for--

MR JUSTICE CALVERT-SMITH: I do not think it is an appropriate case to grant that particular order. I have no doubt that the Secretary of State is actually considering the Sri Lankan position generally and eagerly awaiting the Country Guidance case.

MR HUTTON: Speaking again, my Lord, without instructions, no doubt that is the case.

MR JUSTICE CALVERT-SMITH: If he is not, perhaps he would accept my, among others, invitation, to do so, but I am sure he is. In the event that we are only having to wait less than a month, or something of that order, for further guidance on the situation generally, so far as judges' positions are concerned -- immigration judges and the like -- then no doubt the Home Secretary will think carefully before taking any precipitative action in respect of this person.

MR HUTTON: I will, of course, pass those comments on, my Lord.