UKIAT 000702
APPEAL No. HR/03442/01 (STARRED)
Date of hearing: 19 July 2001 & 15 August 2001
Date Determination notified: 13 March 2002
|JUSTIN SURENDRAN DEVASEELAN
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||RESPONDENT|
a. The history of this appeal
'I do not accept that it is reasonably likely that the Appellant was detained, ill-treated and released in the circumstances that he has described. This alleged incident is the only activity by the authorities, which was deliberately targeted at the Appellant. I have accepted that his home may well have been damaged during the military offensive, but I do not accept that the conduct of the military offensive can be classed as persecution of the Tamil population in the Jaffna Peninsula, or of the Appellant and his family in particular. For the foregoing reasons, I do not accept that the Appellant had a well-founded fear of persecution by the authorities when he left Sri Lanka. Nor do I accept the claim, at paragraph 2 of the grounds that Tamils in Sri Lanka are a persecuted group per se.'
b. The situation in other European countries
a. The approach of the second adjudicator in this appeal
'I was i/v’d on arrival in England. Everything I said was true. I adopt record of i/v. I have scars on body, which are result of accident.
XX If I was sent back - you know situation in Sri Lanka young boys lives are under threat. I found out that those returned are put in jail for 3 years. They tortured them I'm frightened of going there. I found out thro his friend. I had the scars when I left Sri Lanka. I left by plane thro airport. The authorities didn't notice the scarring then. In my asylum claim I was only detained once I'd lived in Sri Lanka 21 years.'
6.1 This is an appeal under Section 65 (1) of the Immigration and Asylum Act 1999 on the grounds that removal of the Appellant to Sri Lanka would be in breach of Articles 2, 3, 5 and 14 of the ECHR and Human Rights Act 1998.
6.2 The Appellant must demonstrate that there are substantial grounds for believing there is a real risk that one or more of the Articles will be breached.
6.3 The Appellant has previously appealed against the refusal of his asylum claim and the appeal was dismissed because the Adjudicator was not satisfied that it was reasonably likely that the Appellant was detained, ill-treated and released in the circumstances that he described and he did not accept that the Appellant had a well founded fear of persecution by the authorities when he left Sri Lanka.
6.4 The Appellant accepted that in his asylum claim he had only been detained on one occasion and although he said he had scars when he left Sri Lanka, he admitted that they were caused as a result of an accident rather than through any ill-treatment.
6.5 Mr O'Callaghan relies mainly on the background evidence to support the Appellant's case, rather than the evidence of the Appellant himself. I have noted the decision of the European Court in Vilvarajah -v- United Kingdom (1991) 14 EHRR 60 that it was not considered enough that there was a generally political situation in Sri Lanka and that some Tamils might be detained or ill-treated.
Caim under Articles 2 and 3.
6.6 Having regard to the Appellant's background and the fact that he had on his own account only been detained on one occasion and failed to satisfy either the Respondent or the Adjudicator to the lower standard of proof required in asylum cases that he had been ill-treated. I do not consider that there is a serious or real risk that he will be targeted by the authorities on his return or be killed, tortured or suffer inhuman or degrading treatment or punishment.
6.7 At worst he might be questioned about his identity before being allowed to go.
Claim under Article 5
6.8 I have noted the decision of the European Court in Murray & Ors -v- United Kingdom (1996) 22 EHRR 29 in which it was held that the level of suspicion required need not be sufficient to charge the detainee and in Brogan & Ors -v- United Kingdom (1998) 11 EHRR 117 detaining suspects to further police investigations by way of confirming or dispelling concrete suspicions of terrorism did not breach the Convention.
6.9 I did not consider that there were any substantial grounds for believing that any detention to which the Appellant might be subjected for identification for identification purposes on his return to Sri Lanka would be in breach of Article 5.
Claim under Article 66.10 As pointed out by the Respondent's representatives in his submission, there was no evidence that the Appellant would face a trial or hearing before a Court in Sri Lanka, let alone that he would face an unfair trial. The mere possibility that he might at some stage in the future be brought before a Court where he could not understand the proceedings was not in my view sufficient to show a real risk of a breach of Article 6.
Claim under Article 146.11 As has been accepted by both parties to this appeal, this Article is not "freestanding" and as the Appellant has not shown that there is a real risk of a breach of any of the other Articles of the EOiR. I have concluded that he has failed to show a "difference in treatment" that he would suffer on return to Sri Lanka, which had no reasonable or objective justification.
6.12 He has failed to show that he would be treated less favourably than others who are in a similar situation to himself as a returning failed Tamil asylum seeker.
6.13 For the above reasons this appeal is dismissed.
b. The phenomenon of second appeals
c. Submissions relating to procedure
2.10 In the circumstances it is submitted that the second Adjudicator has erred in failing to make an independent assessment of the Appellant's history, and further or alternatively in failing to set out with sufficient clarity his primary factual findings and the reasons for those findings.
It is further submitted that these errors are compounded by the second Adjudicator's failure to make any reference to the background evidence.
2.11 Further to the above it is submitted that this deficiency in the second Adjudicator's determination can only be remedied to the Appellant's satisfaction by either an acceptance in its entirety of his account, or a fresh hearing (either before the IA T or by way of remittal to a different adjudicator).'
d. Our guidelines on procedure in second appeals
(1) The first Adjudicator's determination should always be the starting-point. It is the authoritative assessment of the Appellant's status at the time it was made. In principle issues such as whether the Appellant was properly represented, or whether he gave evidence, are irrelevant to this.
(2) Facts happening since the first Adjudicator's determination can always be taken into account by the second Adjudicator. If those facts lead the second Adjudicator to the conclusion that, at the date of his determination and on the material before him, the appellant makes his case, so be it. The previous decision, on the material before the first Adjudicator and at that date, is not inconsistent.
(3) Facts happening before the first Adjudicator's determination but having no relevance to the issues before him can always be taken into account by the second Adjudicator. The first Adjudicator will not have been concerned with such facts, and his determination is not an assessment of them.
4) Facts personal to the Appellant that were not brought to the attention of the first Adjudicator, although they were relevant to the issues before him, should be treated by the second Adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.
(5) Evidence of other facts - for example country evidence may not suffer from the same concerns as to credibility, but should be treated with caution. The reason is different from that in (4). Evidence dating from before the determination of the first Adjudicator might well have been relevant if it had been tendered to him: but it was not, and he made his determination without it. The situation in the Appellant's own country at the time of that determination is very unlikely to be relevant in deciding whether the Appellant's removal at the time of the second Adjudicator's determination would breach his human rights. Those representing the Appellant would be better advised to assemble up-to-date evidence than to rely on material that is (ex hypothesi) now rather dated.
(6) If before the second Adjudicator the Appellant relies on facts that are not materially different from those put to the first Adjudicator, and proposes to support the claim by what is in essence the same evidence as that available to the Appellant at that time, the second Adjudicator should regard the issues as settled by the first Adjudicator's determination and make his findings in line with that determination rather than allowing the matter to be re-litigated. We draw attention to the phrase 'the same evidence as that available to the Appellant' at the time of the first determination. We have chosen this phrase not only in order to accommodate guidelines (4) and (5) above, but also because, in respect of evidence that was available to the Appellant, he must be taken to have made his choices about how it should be presented. An Appellant cannot be expected to present evidence of which he has no knowledge: but if (for example) he chooses not to give oral evidence in his first appeal, that does not mean that the issues or the available evidence in the second appeal are rendered any different by his proposal to give oral evidence (of the same facts) on this occasion.
(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first Adjudicator should not be, as it were, held against him. We think such reasons will be rare. There is an increasing tendency to suggest that unfavourable decisions by Adjudicators are brought about by error or incompetence on the part of representatives. New representatives blame old representatives; sometimes representatives blame themselves for prolonging the litigation by their inadequacy (without, of course, offering the public any compensation for the wrong from which they have profited by fees). Immigration practitioners come within the supervision of the Immigration Services Commissioner under part V of the 1999 Act. He has power to register, investigate and cancel the registration of any practitioner, and solicitors and counsel are, in addition, subject to their own professional bodies. An Adjudicator should be very slow to conclude that an appeal before another Adjudicator has been materially affected by a representative's error or incompetence; and such a finding should always be reported (through arrangements made by the Chief Adjudicator) to the Immigration Services Commissioner.
Having said that, we do accept that there will be occasional cases where the circumstances of the first appeal were such that it would be right for the second Adjudicator to look at the matter as if the first determination had never been made. (We think it unlikely that the second Adjudicator would, in such a case, be able to build very meaningfully on the first Adjudicator's determination; but we emphasise that, even in such a case, the first determination stands as the determination of the first appeal.)
(8) We do not suggest that, in the foregoing, we have covered every possibility. By covering the major categories into which second appeals fall, we intend to indicate the principles for dealing with such appeals. It will be for the second Adjudicator to decide which of them is or are appropriate in any given case.
e. Application of the guidelines to this appeal
f. What has the Appellant established?
THE APPEAL ON HUMAN RIGHTS GROUNDS
a. Introduction: the generallaw
Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.
Rights and freedoms
Right to life1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
a in defence of any person from unlawful violence; b In order to effect as lawful arrest or to prevent the escape of a person lawfully detained;
c in action lawfully taken for the purpose of quelling a riot or insurrection.
Prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases ad in accordance with a procedure prescribed by law:
Right to liberty and security
a the lawful detention of a person after conviction by a competent court;2. Everyone who is arrested shall be informed promptly, in a language, which he understands, of the reasons for his arrest and of any charge against him.
b the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of an obligation prescribed by law;
c the lawful arrest or detention of a person effected for the purposes of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his released ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of his article shall have an enforceable right to compensation.
Right to a fair trial1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
a to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
b to have adequate time and facilities for the preparation of his defence;
c to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
e to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Right to respect for private and family life1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Prohibition of discrimination
1. The Convention Rights
(1) In this Act 'the Convention rights' means the rights and fundamental freedoms set out in -(a) Articles 2 to 12 and 14 of the Convention(2) Those Articles are to have effect for the purposes of this Act subject to any designated derogation or reservation (as to which see sections 14 and 15).
(b) Articles 1 to 3 of the First Protocol, and
(c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention.
2. Interpretation of Convention Rights
(1) A court or Tribunal determining a question which has arisen in connection with a Convention right must take into account any -(a)judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.
6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
7. Proceedings(1) A person who claims that a public authority has acted (or proposed to act) in a way which is made unlawful by section 6(1) may-(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
b. Meaning of 'Convention right' and' act of a public authority'
'In the context of this case, the adjudicator was in error in concluding that Article 4 could not be relied on because it did not, as he put it, have extraterritorial effect. That definition is misleading since there is no question of extra-territorial effect in the true sense since the breach, if any, will have occurred within the jurisdiction by the decision to remove which will have the effect of exposing the individual to whatever violation of human rights is in issue. We have used the word [extra-territorial] as a convenient label for the argument but, for the reasons given, we reject the argument.'
'However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim.'
There is then a reference to Raninen v Finland (1998) 26 EHRR 563, to which Mr Lewis also referred us. The wording in Ireland v UK (1978) 2 EHRR 25 at paragraph 162 is almost identical.
'I would not necessarily expect to see scarring on someone who had been detained for a few days and beaten in many of the ways that are common in Sri Lanka, such as punching, kicking, and being beaten with S-LON pipes, but not assaulted in other ways. The absence of physical signs, however, does not mean that the person has not been tortured.'
d. Article 8
e. Articles 5 and 6
'bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.'
'The right to a fair trial in criminal proceedings, as embodied in Article 6, holds a prominent place in a democratic society. The Court does not exclude that an issue might exceptionally be raised under Article 6 by an extradition decision in circumstances where the fugitive has suffered or risks suffering a flagrant denial of a fair trial in the requesting country. However, the facts of the present case do not disclose such a risk.'
'The Court, like the Commission, considers that in this case the Tribunal de Corts, which pronounced the conviction of Mr Drozd and Mr Janousek, is the 'competent court' referred to in Article 5(1)(a). As the Convention does not require the Contracting Parties to impose its standards on third States or territories, France was not obliged to verify whether the proceedings which resulted in the conviction were compatible with all the requirements of Article 6 of the Convention. To require such a review of the manner in which a court not bound by the Convention had applied the principles enshrined in Article 6 would also thwart the current trend towards strengthening international cooperation in the administration of justice, a trend which is in principle in the interest of the persons concerned. The Contracting States are, however, obliged to refuse their cooperation if it emerges that the conviction is the result of a flagrant denial of justice.
The Court takes note of the declaration made by the French Government to the effect that it could and in fact would refuse its customary cooperation if it was a question of enforcing an Andorran judgment which was manifestly contrary to the provisions of Article 6 or the principles embodied therein. It finds confirmation of this assurance in the decisions of some French courts: certain indictments divisions refuse to allow extradition of a person who has been convicted in his absence in a court where it is not possible for him to be retried on surrendering to justice, and the Conseil d'Etat has declared the extradition of persons liable to the death penalty on the territory of the requesting State to be incompatible with French public policy.
In the Court's opinion, it has not been shown that in the circumstances of the case, France was required to refuse its cooperation in enforcing the sentences.'
'89 ... In short, the objection of lack of jurisdiction ratione loci [i.e. because the events took place on territory not part of a signatory State] is well-founded.
90. This finding does not absolve the Court from examining whether the Applicants came under the 'jurisdiction' of France or Spain within the meaning of Article 1 of the Convention because of their conviction by an Andorran court.
91. The term 'jurisdiction' is not limited to the national territory of the High Contracting Parties; their responsibility can to be involved because of acts of their authorities producing effects outside their own territory.'
(ii) Application to this appeal
f. Article 14(i) General
(ii) With Article 3
(iii) With Article 8
(iv) With Articles 5 and/ or 6
C. M. G. OCKELTON Deputy President