IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v REGINA [1995] EWCA Civ 16

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

LATRF 95/0644/D

[1995] EWCA Civ 16

Case No FC3 95/5923/D

Venue Royal Courts of Justice

Between

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

REGINA

THE IMMIGRATION APPEAL TRIBUNAL and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondents

ex parte JOSEPH LAWRENCE RAJENDRAKUMARApplicant

ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

(1) IYATHURAI SANDRALINGAM

(2) SENATHIRAJAH RAVICHANDRANAppellants

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Before

Lord Justice Nourse

Lord Justice Staughton

Lord Justice Simon Brown

MR. I. MACDONALD QC and MR I. LEWIS (instructed by Messrs. VETTI & CO., Brixton for the Applicant and Messrs. M K SRI & CO., South Harrow for the Appellants respectively).

MR. N. PLEMING QC and MR. R. JAY (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.

Date 11 October 1995

[1]Wednesday, 11th October 1995 LORD JUSTICE SIMON BROWN: The three appellants are young male Tamils, aged respectively 25, 26 and 30. All came to the United Kingdom from Sri Lanka in 1993. All were refused asylum by the Secretary of State and have since had their appeals rejected by the appellate authorities. For convenience I call them all appellants although one, Rajendrakumar, is strictly an applicant, having obtained leave to move for judicial review from the Court of Appeal which reserved the case to itself. Rajendrakumar seeks to quash the Immigration Appeal Tribunals's decision refusing him leave to appeal against the adverse determination of a special adjudicator, Mr. O'Brien Quinn, dated 1st February 1995. The other two appellants appeal by leave of the Court of Appeal against the IAT's decision dated 19th January 1995 dismissing their appeals against adverse determinations of a special adjudicator, Mr. Rapinet, dated 17th August 1994. Given the particular arguments raised upon these appeals, the individual circumstances of the three appellants are of little materiality. Rather it is contended that because of the findings of fact common to all three cases as to the general situation of young male Tamils in Colombo, everyone in this category claiming refugee status is entitled to asylum. It is a wide submission but Mr. Macdonald QC does not shrink from it. He contends that as matters now stand in Sri Lanka (or certainly as matters stood in 1993), widespread persecution of Tamils on Convention grounds is made out on the facts. Once Sri Lanka stabilises, he submits, there can be international agreement for the repatriation of refugees, of the kind ultimately arranged with North Vietnam. That, however, is for the future. As to the facts, there are two aspects of the general situation at present. One concerns periodic round-ups of young male Tamils who are arrested and detained for questioning and thereby lose their freedom for some days. The other concerns their treatment under investigation, those detained having on occasions been subjected to ill-treatment. The appellants assert that each aspect independently amounts to persecution and both are relied upon here. Two other arguments are advanced on these appeals, one of considerable general importance regarding the date at which the appellate authorities should assess the facts in asylum cases, but these I shall come to later having first dealt with the critical central point. Before turning to the facts it is convenient at once to set out the governing provisions of the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol), and the relevant immigration rules.

(A) (2) defines a "refugee" as any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country....."

Article 33(1) provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Immigration Rules HC 725 (effective from July 1993) provides so far as material:

"180B. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied: a.he is in the United Kingdom.....; and b.he is a refugee, as defined by the Convention and Protocol; and c.refusing his application would result in his being required to go, (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (Although not strictly relevant to the present appeals,it may be noted that the introduction of sub-paragraph (C) into the rule alters the previous position as established by R v Secretary of State for the Home Department ex parte Sivakumaran (1988) 1 AC 958 per Lord Goff at 1001: it is now necessary for the claimant to satisfy the Secretary of State both that he is a refugee and that his return would threaten his life or freedom and not merely some lesser human right.) "180I. If there is part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused."

The facts We are concerned here essentially with the situation in Colombo. Although all the appellants originally came from the north of Sri Lanka, each eventually moved to Colombo and it is in the event of their return there that the appellate authorities have concluded that there would be no risk of persecution. In short, Rule 180I is in play. A. The individual appellants Although, as indicated, all three cases stand or fall together and nothing ultimately turns on the factual distinctions between them, it is appropriate to say a word or two about each. Sandralingam and Ravichandran, I should note, were regarded by the appellate authorities as credible witnesses whose accounts of their experiences were substantially accepted; Rajendrakumar was not, and indeed a series of adverse findings were made against his credibility. Sandralingham Sandralingham was detained and tortured by the security forces three times between 1985 - 1989 (when aged 15 - 20). The leader of the Tamil Tigers (LTTE) came from his village and during these years Sandralingham voluntarily supported and assisted their cause. In June 1993 he came to Colombo where he had family connections and there he remained in hiding for a month before arriving in this country in July 1993. He was refused asylum by the Secretary of State in August 1993. He continues to be gravely affected by his experiences in the late 1980s and the special adjudicator recommended that he should be allowed to remain here until his health has improved. Ravichandran Ravichandran comes from the Jaffna area where he voluntarily supported the LTTE. He was detained and ill-treated there twice before moving south to stay with an uncle in Colombo in early 1993. In Colombo he was arrested three times and detained respectively for two days, three days and fifteen days, suffering torture during that final period of detention. The first arrest was because he was lacking the necessary identity papers and had therefore been unable to register as required. He was detained on the other two occasions as part of mass round-ups of Tamils after LTTE violence in Colombo, on the final occasion following the President's assassination in April 1993. Ravichandran came to the United Kingdom in July 1993 and was refused asylum by the Secretary of State the following month. Rajendrakumar As stated, most of Rajendrakumar's factual account was rejected. Essentially all that was accepted was that he had twice been arrested on suspicion and detained for questioning (but not tortured) in the course of investigations by the security forces in the north and before he moved to Colombo in March 1993. He arrived in the United Kingdom in April 1993 and was refused asylum in October 1993. B. The general situation (i) The round-ups The fact that young Tamils are arrested in large numbers in Colombo was accepted by both the special adjudicators concerned in these cases and by the IAT. None of these appellate authorities, however, thought that such round-ups constitute persecution on a Convention ground. Mr. O'Brien Quinn, having found that Rajendrakumar "had been picked up and questioned by the IPKF [Indian Peace Keeping Force] and later, the Sri Lankan Army, purely on suspicion, as he was a young Tamil, and in the course of the Army's duties to keep the peace, and not for any other reason", reached this conclusion :

"I accept that young Tamils are, from time to time, picked up by the Authorities in Colombo, on suspicion when the Authorities are carrying on investigations, in the course of their duties in the combatting of disturbances, and for the public good in the country, but....in particular where there was no reason, other than the investigation of young Tamils by the police, I find that I cannot accept that he had any genuine fear of being harassed or persecuted for a 'Convention reason', while he remained in Colombo....."

. Mr. Quinn further noted with approval that in the earlier case of Praivalan , the IAT had accepted the Home Office's arguments that:

"......because the root of the disturbances in Sri Lanka was Tamil-inspired, the police would necessarily be focusing on male Tamils, that what was happening has to be put into context, and.....that, in assessing 'oppression' account must be taken of the background to the action; and while, clearly some acts would not be permissible whatever the circumstances, in the case of a country torn apart by internal strife, the actions of the government and Authorities cannot be construed other than in the context of that strife; and, in addition......while account must be taken of the international covenant on human rights, attention must also be given to the need for investigative action to combat internal disturbance and to act for the public good within the country as a whole, particularly where the disturbances have their bases in disputes between ethnic groups, it may well, on occasion, be impossible to separate the categorisation of those arrested, on the basis of possible participation in the disturbances, from the membership of such a group."

Mr.Rapinet, whose view the IAT quoted with approval, said this:

"I now turn to the position of Tamils in the south and in the area of Colombo and its environs. .......There are some 300,000 Tamils in Colombo and Greater Colombo, and many others who live outside the conflict zone to the north and east, who meet with no harassment. It is clear to me from the documentary evidence available that the Sri Lankan Army and authorities are clearly in control of this region. It is also clear from a record of assassinations, explosions and other acts of terrorism that have taken place in Colombo that not inconsiderable numbers of LTTE members have infiltrated into the region and Mr. Varadakumar [Director of the Tamil Information Centre] .....confirm that this is so and that they are sheltered and assisted by Tamils already resident there, usually on a voluntary basis. It is alleged ....that although this may be the position, the mass round-ups and detentions of Tamils that take place in the Colombo region are unwarranted and amount to harassment. I do not find myself in sympathy with this view. The conduct of the LTTE in the north and east leads me to the conclusion that its activities serve only to create anarchy, disorder and civil strife, and the anxiety of the Sri Lankan government to prevent that situation spreading to the south is perfectly understandable. The more so when one considers that the LTTE has succeeded in assassinating the President, and other prominent members in public life, as well as ordinary innocent citizens, Sinhalese as well as Tamil. The infiltration of the LTTE and the assistance which they receive from some members of the Tamil community is accepted by the appellant's representative. In the circumstances I consider that the action of the government in periodically rounding-up Tamils, especially at a time of crisis such as that of an assassination, or a bomb exploding is justified. There is no evidence that the majority of those rounded up are not released after a reasonable period of time, and indeed this is confirmed by the UNHCR Working Group. I therefore do not accept the contention that the action of the authorities towards the Tamil population in this area amounts to harassment."

The IAT added their own reasoning as follows:

"Where following intelligence information that Tamils linked with the Tamil Tigers have infiltrated into the surroundings of Colombo, or there has been some violent outrage within the city, Tamils are arrested in large numbers for questioning: such arrests are not arbitrary. They are not capricious: they are based on the nature of things, that is to say, the reasonable possibility, in intelligence terms, that among those arrested there may be individuals responsible for, or planning, anti-government activities. The arrests are in fact of possible suspects. The Amnesty International report of February 1994 .....states: 'Tamil people are particularly at risk of being arrested if they are young men, if they have recently arrived in Colombo, if they do not have a job or family in Colombo, if their identity documents were issued in the north east, or if they are not carrying identity documents. People who do not have a national identity card, such as some from Jaffna who have lost their card and have been unable to obtain a replacement, or some from the tea estate areas of the hill country who have not been issued with a card, are particularly vulnerable to arrest.'" "

On the true meaning of 'arbitrary' we do not consider that the rounding-up or calling in for questioning of Tamils in and around Colombo when the security forces are faced with outrages or information that suggests likely outrages, are arbitrary. It is arguing it seems to us in a circle to suggest that is so because innocent are involved. Until those who may be involved are investigated, how can some be identified as innocent? To say that only those against some evidence is already established should be arrested is to ignore the practicalities of a government seeking to maintain law and order when faced with covert violent activities by those whose every endeavour is to remain concealed and to pass as ordinary civilians." (ii) Ill-treatment The IAT rightly recognised that, even if the detentions did not amount to persecution, oppressive and violent treatment of those under investigation could well do so. As to this aspect of the case, the IAT first noted the Secretary of State's contention "that those who are rounded-up do now enjoy greater protection than hitherto". (The special adjudicator, Mr. Rapinet, had recorded in Ravichandran's case:

"The Secretary of State fully accepts that prior to 1991 the position in Sri Lanka was unacceptable and that the government had itself used considerable force when faced by a brutal campaign of violence from Tamil extremists. However, the government has since 1991 taken considerable steps to improve the human rights situation; and there is now a degree of security in Colombo and the south.") The IAT then continued: ".....it is clear to us that the situation with regard to the treatment of Tamils in and around Colombo had improved significantly by the date of the Secretary of State's decision from what it had been earlier. That amelioration is a continuing process. .......we conclude that circumstances have improved, and that those Tamils who are called for questioning after security alerts, will now have greater protection against excesses by the security forces and the police than they were hitherto accorded"

. The IAT's final conclusion was expressed thus:

"Our conclusion is that those Tamils who are rounded-up in security checks and operations in and around Colombo are now not likely to be subject to such ill-treatment as to give rise to a well-founded fear of persecution. The excesses of the past have become too well known for the authorities to ignore international pressures, and we find no evidence to suggest that there is other than a strong likelihood that circumstances will continue to improve."

Mr. Quinn in Rajendrakumar's case had also referred to the improving situation in Sri Lanka:

"The Secretary of State also noted that, from information at his disposal, he was aware that widespread human rights abuses, which had taken place in recent years, had sharply declined and that the Sri Lankan government had taken measures to protect the human rights of all its citizens as a result of pressure from bodies such as Amnesty International and Donor Governments. He also noted that the Human Rights Force had been set up, and international bodies such as the International Committee of the Red Cross, the United Nations Working Group, Donor governments and Amnesty International, had all been allowed to visit Sri Lanka and had worked to introduce a new sense of discipline and accountability in the police and armed forces. The Secretary of State also noted that the Sri Lankan government had publicly accepted their responsibility for investigating alleged violations of human rights by the Security Forces and prosecuting offenders, and that the Ministry of Defence had issued clear directives to Security Forces for the strict observance of, and respect for, human rights." (i) The case with regard to the round-ups The appellants' arguments Mr. Macdonald's essential argument is that the appellate authorities have mis-directed themselves in law in regarding these mass arrests of Tamils as justifiable rather than as arbitrary, unlawful and amounting to persecution for a Convention reason - i.e. for being a Tamil. They are, he submits, in breach both of the International Covenant on Civil and Political Rights (the 1966 Covenant) to which Sri Lanka is a party, and of Sri Lankan domestic law. Those are, he argues, important considerations in determining the ultimate question which has to be addressed here: whether the risk of such arrests and detentions gives rise to a well-founded fear of being persecuted for being a Tamil. As to what precisely is meant by "persecution" in the 1951 Convention, Mr. Macdonald invites our attention first, to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979); second, to the single English authority which attempts any definition of the term - Nolan, J.'s first instance decision in R v IAT ex parte Jonah (1985) ImmAR 7; and third, to Professor Hathaway's 1991 Canadian publication, The Law of Refugee Status. It is convenient to start with the 1966 Covenant and Sri Lanka's own law. The relevant Articles of the 1966 Covenant are these: "9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 4(1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin. 4(3) Any State Party to the present covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations of the provisions from which it has derogated and of the reasons by which it was actuated."

As to Sri Lankan law, all that is before us is the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, section 6(1) of which permits the arrest without a warrant of any person "connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity". There is reference in the papers before us also to Sri Lankan Emergency Regulations but the details of these are not known. Mr. Macdonald's short submission with regard to those provisions is that the mass round-ups of young male Tamils such as are described in the determinations under appeal clearly offend against them: those arrested cannot be said individually to be "reasonably suspected of being connected with or concerned in any unlawful activity". Rather the great majority will prove not to be genuine suspects at all. They have accordingly been deprived of their liberty otherwise than in accordance with legal grounds and procedures so as to breach Article 9 of the 1966 Covenant and there is no suggestion that Sri Lanka has sought to derogate from that obligation. The arrests and detentions are, moreover, it is argued, for a Convention reason: only Tamils are rounded-up and they are rounded-up only because they are Tamils (or, at the very least, only because they are Tamils within one of the given sub-groups identified by the already quoted February 1994 Amnesty Report). Turning to the meaning of persecution within the 1951 Convention, paragraph 51 of the UNHCR Handbook says this:

"51. There is no universally accepted definition of 'persecution', and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons [i.e. for a Convention reason] - would also constitute persecution."

Nolan, J. in Ex parte Jonah applied to the word 'persecution' its ordinary meaning as found in the dictionary:

"To pursue with malignancy or injurious action; especially to oppress for holding a heretical opinion or belief."

Nolan, J. further noted the comment to be found in Mr. Macdonald's own textbook on Immigration Law and Practice that persecution must be ' of a very serious kind' (in the new edition, Mr. Macdonald tells us, the word 'very' is to be omitted), and accepted "that considerations of policy may require a stringent test to be adopted if this country is not be flooded with those claiming political asylum." Professor Hathaway's work explores the concept of persecution in very considerable depth and much of it I found instructive. For present purposes, however, I think it sufficient to quote two short passages only. First this:

"In sum, persecution is most appropriately defined as the sustained or systemic 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 the third category which is either discriminatory or not grounded in the absolute lack of resources."

'The first category' there referred to consisted of 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. 'The second category' is defined by Professor Hathaway to include 'freedom from arbitrary arrest or detention', and is said by reference to the 1966 Convention to encompass rights from which States may derogate. (We are not here concerned with third category rights.) Second, this:

"....the real risk of a human rights violation of the second category - arbitrary arrest or detention, denial of freedom of movement, opinion, association, or privacy for example - is usually to be equated with persecution. The only exception is short-term, emergency derogation of a non-discriminatory nature from a second category right, which under international law is insufficient to establish the absence of state protection."

Footnoted to that reference to 'short-term' is this:

"Grahl-Madsen, for example, draws an arbitrary standard for determining when emergency detention is of sufficient duration to amount to persecution: 'When it comes to threats to freedom, it is hoped that my old conclusion still holds good: that imprisonment or detention for a period of three months or more constitutes persecution.'"

Looking at those various definitions or approaches in the round, Mr. Macdonald argues that even in Colombo young male Tamils face a threat to their freedom. True, he acknowledges, wrongful detention of itself will not in all circumstances amount to persecution, but the evidence here is of repeated and widespread round-ups targeted at an ethnic group. The practice contravenes, he submits, internationally accepted standards of human rights. As illustrative of that proposition Mr. Macdonald refers us to the decision of the Canadian Federal Court of Appeal in Thirunavukkarasu v Minister of Employment and Immigration 109 DLR (4th) 682, another Sri Lankan Tamil asylum case. The judgment of the court given by Linden, J.A. includes these passages:

"While the appellant had twice been arrested in Colombo in 1989 by the police and subjected to beating and detention, the panel [the refugee panel from whom the appeal lay] held that these arrests were part of the Sri Lankan government's "perfectly legitimate investigations into criminal and/or terrorist activities" by Tamil organisations. In my view, beatings of suspects can never be considered "perfectly legitimate investigations", however dangerous the suspects are thought to be." "

The panel made no adverse finding about the appellant's credibility. The appellant's testimony reveals that he was subjected to arbitrary arrest and detention, as well as beatings and torture at the hands of the Sri Lankan government during his time in Colombo. These arrests were motivated by the simple fact of the appellant's being a Tamil. As the appellant argues, the state of emergency in Sri Lanka cannot justify the arbitrary arrest and detention as well as beating and torture of an innocent civilian at the hands of the very government from whom the claimant is supposed to be seeking safety. While the appellant may indeed be safe from the LTTE in Colombo (although this is not entirely clear), he does not appear to be safe from persecution at the hands of the Sri Lankan government on the basis of being a Tamil." The respondents' arguments Mr. Pleming QC argues first that the limited loss of liberty suffered as a result of these round-ups is not sufficiently serious to constitute persecution. The threat to freedom contemplated by Article 33 and by paragraph 51 of the UNHCR Handbook is, he submits, a term of detention related to life imprisonment, measurable in years rather than days. Failing that he would no doubt seek to rely upon Professor Hathaway's foot-noted reference to 'a period of three months or more'. Alternatively, he argues, even if such loss of liberty does constitute persecution, it is not persecution for a Convention reason: young male Tamils are not arrested and detained because they are Tamils but rather because they may have been involved in some outrage. The round-ups are not, he submits, arbitrary. The very fact that the particular sub-groups identified by the Amnesty Report are especially vulnerable to arrest shows that the true objective of the round-ups is to combat terrorism rather than discriminate against Tamils as such. In this connection Mr. Pleming refers us to a passage from Lord Keith's speech in Ex parte Sivakumaran at page 995:

"It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that Army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils such as young males in the north of the country, were being subjected to persecution for any Convention reason."

Mr. Macdonald has, of course, 'seriously maintained' that very case, but no more persuasively, submits Mr. Pleming, than the court found in Ex parte Sivakumaran. Conclusions In my judgment, the issue whether a person or group of people have a "well-founded fear [i.e. a real risk - see Ex parte Sivakumaran ] of being persecuted for [Convention] reasons" - and similarly the Article 33(1) and Rule 180B(c) issue whether such a person's "freedom would be threatened" for a Convention reason -raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention. It follows that I for my part would follow a rather different approach to that of counsel on both sides. Take Mr. Pleming's submissions. If the real purpose of these round-ups was to deprive Tamils of their liberty simply out of hostility towards them (i.e. with "malignancy"), I cannot think that the loss of freedom involved would properly be held insufficient to constitute persecution. Equally, if there remained a practice of torturing those detained, I very much doubt whether a finding of persecution on Convention grounds would be precluded merely because the torture was intended to discourage terrorism or to persuade detainees to inform on their associates rather than inflicted for purposes of oppression. What then are the circumstances relevant to the single composite question to be asked in the present cases? Clearly they include the following: (i)The frequency of round-ups and the length of the detentions resulting; (ii)The situation prevailing in Colombo at the material time and the Sri Lankan government's undoubted need to combat Tamil terrorism; (iii) The true purpose of the round-ups and the efforts made to arrest and detain only those realistically suspected of involvement in the disturbances. As may readily be seen from the passages quoted from the determinations under appeal, the appellate authorities did indeed focus on all these central considerations. They made the point that in 1993 the situation in Colombo was critical and involved periodic outrages and assassinations. They made the point that those particularly at risk of arrest were young men recently arrived in Colombo, without a job or family there, and without identity documents - 'prime suspects' as Mr. Pleming called them. Indeed, in Rajendrakumar's case, Mr. Quinn found 'no serious risk that he would be picked up and questioned'. They made the point that most of those detained were released after a reasonable time. In my judgment these considerations amply support the appellate authorities' conclusion in each of these cases that the appellants' claim to refugee status has not been made good. With one exception I would reject all of Mr. Macdonald's criticisms of the various determinations. In particular I cannot accept that, even supposing these round-ups to be unlawful under Sri Lankan law and the 1966 Covenant, they are thereby necessarily to be regarded as involving persecution for a Convention reason. Justified or not, the loss of liberty involved is relatively limited and although in one sense the arrests are clearly ethnically based they are obviously directed not to the oppression of Tamils as such but rather to the maintenance of public order. The one criticism of these determinations which I do accept is of the appellate authorities' conclusion that these round-ups are' justified'. Clearly they are not justified unless they are lawful. It must not be thought that this court would ever condone unlawful state conduct. Whilst I accept Mr. Pleming's submission that there is insufficient evidence before us to be clear whether or not the round-ups breach Sri Lankan law and the 1966 Covenant, there appears to me at least a prima facie case here of unlawful arrests and detentions, however understandable they may be in the present context. That conclusion, however, is to my mind wholly insufficient to make good these appeals. (ii) The case with regard to ill-treatment of detainees Unlike the Canadian Refugee Panel in Thirunavukkarasu , the appellate authorities here have not regarded ill-treatment as 'perfectly legitimate' but rather as 'excesses of the past' against which there is now greater protection. In essence the appellate authorities' conclusion is that there is now no significant risk of such ill-treatment in Colombo. It is this finding which Mr. Macdonald seeks to attack by reference to the date at which the assessment of risk is properly to be made. The relevant date is, he submits, that of the Secretary of State's decision; the appellate authorities' jurisdiction is confined to reviewing whether or not the applicant was a refugee when refused asylum by the Secretary of State. Accordingly, the argument runs, the appellate authorities here should have ignored rather than relied upon the improvements in the situation in Sri Lanka between the Autumn of 1993 when these three appellants were refused asylum and early 1995 when their appeals were finally dismissed. It is unclear whether the decisions here would have been any different even had the appellate authorities confined themselves to considering the situation in Sri Lanka in the Autumn of 1993; the improvements had, after all, started in 1991. But let it be assumed that the IAT, certainly in Sandralingham and Ravichandran's cases, by referring to the improvement as a still continuing process, were indeed regarding recent improvements as material to their assessment of the present level of risk. Were they right to do so? Laws, J. in refusing Rajendrakumar leave to move at first instance, said this:

".....there are cases in the books in which courts have held, not least in the context of the immigration rules related to primary purpose and marriage cases, that the task of the appellate authorities is to look at the situation at the time of the Secretary State's decision. Whatever may be the position in relation to primary purpose cases, I simply cannot believe that in these acutely important asylum cases the adjudicator is solemnly to ask himself a question not about the present but about the past; that he is to conduct a judicial exercise which is historic only. The whole purpose of the grant of special rights of appeal under the Asylum and Immigration Appeals Act 1993, to persons whose asylum applications have been turned down, is to secure protection for those who might in truth, turn out to be true refugees. I cannot believe that the appellate authorities should do anything but ascertain, when a case comes before them, whether the appellant with whom they are dealing is then and there a person with a well-founded fear of persecution."

Mr. Macdonald acknowledges the good sense of that conclusion but submits that the case-law holding that appeals in immigration cases generally are concerned with the factual situation existing at the date of the decision under appeal applies equally to asylum appeals. The point is, he argues, ultimately one of statutory construction and it is section 19 of the Immigration Act 1971 upon which he relies. Let me at this stage set out the relevant statutory provisions, starting with section 8(1) of the Asylum and Immigration Appeals Act 1993:

"8(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention"

. So far so good: section 8 appears to look to a removal in the future and to raise on appeal the question whether that would contravene the Convention. By paragraph 4 of Schedule 2 of the 1993 Act, however, section 19 of the 1971 Act "shall have effect as if section 8 of this Act were contained in Part II of that Act". Part II of the 1971 Act deals with appeals, and section 19, so far as material, provides:

" 19(1)........an adjudicator on an appeal to him under this Part of this Act - (a) shall allow the appeal if he considers - (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal. (2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based....."

. With regard to immigration appeals generally (which, of course, are by no means restricted to primary purposes cases) there is no doubt whatever that appeals have to be dealt with on the basis of the factual situation existing at the time of the original decision against which the appeal is brought. That was established in 1982 in R v IAT ex parte Weerasuriya (1983) 1 AER 195 and R v IAT ex parte Kotecha (1983) 2 AER 289, and the rule has been applied in innumerable cases since. Does the reasoning in those cases apply equally, as Mr. Macdonald submits, to asylum appeals? Although I confess to finding this a difficult issue, I have concluded that the position is indeed different in asylum appeals. It is true that to a substantial extent the reasoning in Weerasuriya and Kotecha relies as a matter of construction on the use of the past tense in section 19(1)(a)(i) and (ii) (and indeed in section 19(2)), but the court relied also upon other considerations which they found reinforced their construction of section 19, principally the nature of the appellate structure in immigration cases. As Webster, J. said in Weerasuriya in a passage then approved by the Court of Appeal in Kotecha :

".....it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed. It seems to me it falls into the latter category rather than into the former category."

I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act over-rides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could, but does not, identify the ground of appeal as being that the appellant's removal "would have been" (rather than "would be") contrary to the United Kingdom's Convention obligations. Moreover, section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to over-ride the particular. When it comes to the policy considerations, moreover, there are clearly good reasons for adopting a different approach in asylum cases. Whereas all ordinary immigration cases are entirely specific to the individual applicant and ask simply whether he or she qualifies under the rules, in asylum cases are necessarily concerned at least in part with the situation prevailing in a particular foreign country. Not only the Secretary of State but also the special adjudicators build up a body of knowledge about that situation and it would be unfortunate indeed if they are bound to ignore all that they know to have happened after a given historical date, the date of the Secretary of State's refusal of asylum. The situation might have changed for the better or it might have changed for the worse. In either event, if the appellate authorities were bound to ignore such changes, it would render their decisions substantially less valuable. If the situation had improved but, because the appellate authorities had to ignore such improvement, the appeal succeeded, the Secretary of State might nevertheless, in reliance upon Article 1C(5) of the 1951 Convention refuse the appellant refugee status. Article 1C(5) provides that the Convention ceases to apply if:

"(5) He (the refugee) can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to avail himself of the protection of the country of his nationality."

Equally, had the situation deteriorated but, because this had to be ignored, the appeal failed, the claimant could put a fresh case to the Secretary of State. In either event, the appeal process could well have to start all over again. Lord Lane, C.J. in Kotecha concluded his judgment thus:

"......were the submissions of counsel for the appellant to be accepted as correct [i.e. were the appellant authorities obliged to look at new developments] it would mean a never-ending system of appeal, each court up the line being obliged to review the facts in the light of events as they stood, not at the time of the original decision but as they stood at each stage of the appellate system, and the system would become even more unmanageable than some people believe it to be at present."

In asylum cases, that does not seem to me to hold true. It follows that in my judgment this ground of appeal also fails. Mr. Macdonald's third and final ground of appeal I can take altogether more shortly. It is that the IAT acted unfairly in the cases of Sandralingham and Ravichandran in giving no sufficient indication of their intention to look at the improving situation in Sri Lanka and no sufficient opportunity for the appellants to meet that new factual case. I unhesitatingly reject this argument. As Mr. Pleming demonstrated, both sides followed a gradual process of adding information as the appellate process took its course. By way of example, it was the appellants who introduced on appeal the Amnesty Report of February 1994. It is, moreover, plain from the IAT's own determination that the appellants' counsel had argued the point as to whether post-refusal developments were relevant evidence on appeal and it was necessarily implicit in this that, were his argument to fail, such developments would be brought into account. There is no evidence before us that he sought, and was refused, an adjournment to meet that difficulty. It follows that I find no substance in any of Mr. Macdonald's grounds and would dismiss the appeals and application before us. LORD JUSTICE STAUGHTON: I agree that these appeals and application should be dismissed. On the first point, as to whether the periodical round up of young Tamil males in Colombo must amount to persecution for the reason of race, we must not forget what the situation was in April and May 1993. Both the President of Sri Lanka and the Leader of the Opposition were assassinated by suicide bombs in one week; and this was, or at any rate was reasonably thought to be, the work of Tamils. We should not seek to discriminate too nicely as to what is and what is not the appropriate response of the forces of law and order in such circumstances. Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so. On the material which Simon Brown LJ has analysed that does not cover the present cases. The ill-treatment of Tamils in detention which is said once to have prevailed in Sri Lanka is another matter. But on the evidence and findings in this case, it is not now a cause for apprehension if these young men are sent back there. The Canadian case of Thirunakkarasu v. Minister of Employment and Immigration (1993) 109 DLR (4th) 682 was decided on different evidence about a different time which led to a different conclusion. There remains the question as to what point of time should be the focus of a decision by a special adjudicator or the Immigration Appeal Tribunal. Section 8(1) of the Asylum and Immigration Appeals Act 1993 provides: A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the convention. That manifestly looks to the future at the date of the appeal. It reflects Article 33 of the 1951 Convention and gives rise to rule 180B of the Immigration Rules. In those circumstances the procedural provisions of section 19 of the Immigration Act 1971, as incorporated by paragraph 4(2) of Schedule 2 of the 1993 Act, must yield if and in so far as they would otherwise confine the appellate tribunals to the facts that existed at the time of the Secretary of State's decision. LORD JUSTICE NOURSE : I agree with both judgments. Order:application and appeals dismissed with costs not to be enforced without the leave of the court; legal aid taxation for the applicant and appellants; leave to appeal to the House of Lords refused. © Crown Copyright Given the particular arguments raised upon these appeals, the individual circumstances of the three appellants are of little materiality. Rather it is contended that because of the findings of fact common to all three cases as to the general situation of young male Tamils in Colombo, everyone in this category claiming refugee status is entitled to asylum. It is a wide submission but Mr. Macdonald QC does not shrink from it. He contends that as matters now stand in Sri Lanka (or certainly as matters stood in 1993), widespread persecution of Tamils on Convention grounds is made out on the facts. Once Sri Lanka stabilises, he submits, there can be international agreement for the repatriation of refugees, of the kind ultimately arranged with North Vietnam. That, however, is for the future. As to the facts, there are two aspects of the general situation at present. One concerns periodic round-ups of young male Tamils who are arrested and detained for questioning and thereby lose their freedom for some days. The other concerns their treatment under investigation, those detained having on occasions been subjected to ill-treatment. The appellants assert that each aspect independently amounts to persecution and both are relied upon here.

[2]Two other arguments are advanced on these appeals, one of considerable general importance regarding the date at which the appellate authorities should assess the facts in asylum cases, but these I shall come to later having first dealt with the critical central point.

[3]Before turning to the facts it is convenient at once to set out the governing provisions of the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol), and the relevant immigration rules. The 1951 Convention

[4]Article 1(A)(2) defines a "refugee" as any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country....."

[5]Article 33(1) provides:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."

Immigration Rules

[6]HC 725 (effective from July 1993) provides so far as material:

"180B. A person will be granted asylum in the United Kingdom if the Secretary of State is satisfied: a.he is in the United Kingdom.....; and b.he is a refugee, as defined by the Convention and Protocol; and c.refusing his application would result in his being required to go, (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. (Although not strictly relevant to the present appeals,it may be noted that the introduction of sub-paragraph (C) into the rule alters the previous position as established by R v Secretary of State for the Home Department ex parte Sivakumaran (1988) 1 AC 958 per Lord Goff at 1001: it is now necessary for the claimant to satisfy the Secretary of State both that he is a refugee and that his return would threaten his life or freedom and not merely some lesser human right.) "180I. If there is part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused."

The facts

[7]We are concerned here essentially with the situation in Colombo. Although all the appellants originally came from the north of Sri Lanka, each eventually moved to Colombo and it is in the event of their return there that the appellate authorities have concluded that there would be no risk of persecution. In short, Rule 180I is in play.

[8]A. The individual appellants

[9]Although, as indicated, all three cases stand or fall together and nothing ultimately turns on the factual distinctions between them, it is appropriate to say a word or two about each. Sandralingam and Ravichandran, I should note, were regarded by the appellate authorities as credible witnesses whose accounts of their experiences were substantially accepted; Rajendrakumar was not, and indeed a series of adverse findings were made against his credibility. Sandralingham

[10]Sandralingham was detained and tortured by the security forces three times between 1985 - 1989 (when aged 15 - 20). The leader of the Tamil Tigers (LTTE) came from his village and during these years Sandralingham voluntarily supported and assisted their cause. In June 1993 he came to Colombo where he had family connections and there he remained in hiding for a month before arriving in this country in July 1993. He was refused asylum by the Secretary of State in August 1993. He continues to be gravely affected by his experiences in the late 1980s and the special adjudicator recommended that he should be allowed to remain here until his health has improved. Ravichandran

[11]Ravichandran comes from the Jaffna area where he voluntarily supported the LTTE. He was detained and ill-treated there twice before moving south to stay with an uncle in Colombo in early 1993. In Colombo he was arrested three times and detained respectively for two days, three days and fifteen days, suffering torture during that final period of detention. The first arrest was because he was lacking the necessary identity papers and had therefore been unable to register as required. He was detained on the other two occasions as part of mass round-ups of Tamils after LTTE violence in Colombo, on the final occasion following the President's assassination in April 1993. Ravichandran came to the United Kingdom in July 1993 and was refused asylum by the Secretary of State the following month. Rajendrakumar

[12]As stated, most of Rajendrakumar's factual account was rejected. Essentially all that was accepted was that he had twice been arrested on suspicion and detained for questioning (but not tortured) in the course of investigations by the security forces in the north and before he moved to Colombo in March 1993. He arrived in the United Kingdom in April 1993 and was refused asylum in October 1993.

[13]B.

(i) The round-ups

[14]The fact that young Tamils are arrested in large numbers in Colombo was accepted by both the special adjudicators concerned in these cases and by the IAT. None of these appellate authorities, however, thought that such round-ups constitute persecution on a Convention ground.

[15]Mr. O'Brien Quinn, having found that Rajendrakumar "had been picked up and questioned by the IPKF [Indian Peace Keeping Force] and later, the Sri Lankan Army, purely on suspicion, as he was a young Tamil, and in the course of the Army's duties to keep the peace, and not for any other reason", reached this conclusion : "I accept that young Tamils are, from time to time, picked up by the Authorities in Colombo, on suspicion when the Authorities are carrying on investigations, in the course of their duties in the combatting of disturbances, and for the public good in the country, but....in particular where there was no reason, other than the investigation of young Tamils by the police, I find that I cannot accept that he had any genuine fear of being harassed or persecuted for a 'Convention reason', while he remained in Colombo.....".

[16]Mr. Quinn further noted with approval that in the earlier case of Praivalan , the IAT had accepted the Home Office's arguments that:

"......because the root of the disturbances in Sri Lanka was Tamil-inspired, the police would necessarily be focusing on male Tamils, that what was happening has to be put into context, and.....that, in assessing 'oppression' account must be taken of the background to the action; and while, clearly some acts would not be permissible whatever the circumstances, in the case of a country torn apart by internal strife, the actions of the government and Authorities cannot be construed other than in the context of that strife; and, in addition......while account must be taken of the international covenant on human rights, attention must also be given to the need for investigative action to combat internal disturbance and to act for the public good within the country as a whole, particularly where the disturbances have their bases in disputes between ethnic groups, it may well, on occasion, be impossible to separate the categorisation of those arrested, on the basis of possible participation in the disturbances, from the membership of such a group."

[17]Mr.Rapinet, whose view the IAT quoted with approval, said this:

"I now turn to the position of Tamils in the south and in the area of Colombo and its environs. .......There are some 300,000 Tamils in Colombo and Greater Colombo, and many others who live outside the conflict zone to the north and east, who meet with no harassment. It is clear to me from the documentary evidence available that the Sri Lankan Army and authorities are clearly in control of this region. It is also clear from a record of assassinations, explosions and other acts of terrorism that have taken place in Colombo that not inconsiderable numbers of LTTE members have infiltrated into the region and Mr. Varadakumar [Director of the Tamil Information Centre] .....confirm that this is so and that they are sheltered and assisted by Tamils already resident there, usually on a voluntary basis. It is alleged ....that although this may be the position, the mass round-ups and detentions of Tamils that take place in the Colombo region are unwarranted and amount to harassment. I do not find myself in sympathy with this view. The conduct of the LTTE in the north and east leads me to the conclusion that its activities serve only to create anarchy, disorder and civil strife, and the anxiety of the Sri Lankan government to prevent that situation spreading to the south is perfectly understandable. The more so when one considers that the LTTE has succeeded in assassinating the President, and other prominent members in public life, as well as ordinary innocent citizens, Sinhalese as well as Tamil. The infiltration of the LTTE and the assistance which they receive from some members of the Tamil community is accepted by the appellant's representative. In the circumstances I consider that the action of the government in periodically rounding-up Tamils, especially at a time of crisis such as that of an assassination, or a bomb exploding is justified. There is no evidence that the majority of those rounded up are not released after a reasonable period of time, and indeed this is confirmed by the UNHCR Working Group. I therefore do not accept the contention that the action of the authorities towards the Tamil population in this area amounts to harassment."

[18]The IAT added their own reasoning as follows:

"Where following intelligence information that Tamils linked with the Tamil Tigers have infiltrated into the surroundings of Colombo, or there has been some violent outrage within the city, Tamils are arrested in large numbers for questioning: such arrests are not arbitrary. They are not capricious: they are based on the nature of things, that is to say, the reasonable possibility, in intelligence terms, that among those arrested there may be individuals responsible for, or planning, anti-government activities. The arrests are in fact of possible suspects. The Amnesty International report of February 1994 .....states: 'Tamil people are particularly at risk of being arrested if they are young men, if they have recently arrived in Colombo, if they do not have a job or family in Colombo, if their identity documents were issued in the north east, or if they are not carrying identity documents. People who do not have a national identity card, such as some from Jaffna who have lost their card and have been unable to obtain a replacement, or some from the tea estate areas of the hill country who have not been issued with a card, are particularly vulnerable to arrest.'" "

[19]The IAT rightly recognised that, even if the detentions did not amount to persecution, oppressive and violent treatment of those under investigation could well do so.

[20]As to this aspect of the case, the IAT first noted the Secretary of State's contention "that those who are rounded-up do now enjoy greater protection than hitherto". (The special adjudicator, Mr. Rapinet, had recorded in Ravichandran's case: "The Secretary of State fully accepts that prior to 1991 the position in Sri Lanka was unacceptable and that the government had itself used considerable force when faced by a brutal campaign of violence from Tamil extremists. However, the government has since 1991 taken considerable steps to improve the human rights situation; and there is now a degree of security in Colombo and the south.")

[21]The IAT then continued: ".....it is clear to us that the situation with regard to the treatment of Tamils in and around Colombo had improved significantly by the date of the Secretary of State's decision from what it had been earlier. That amelioration is a continuing process. .......we conclude that circumstances have improved, and that those Tamils who are called for questioning after security alerts, will now have greater protection against excesses by the security forces and the police than they were hitherto accorded".

[22]The IAT's final conclusion was expressed thus:

"Our conclusion is that those Tamils who are rounded-up in security checks and operations in and around Colombo are now not likely to be subject to such ill-treatment as to give rise to a well-founded fear of persecution. The excesses of the past have become too well known for the authorities to ignore international pressures, and we find no evidence to suggest that there is other than a strong likelihood that circumstances will continue to improve."

[23]Mr. Quinn in Rajendrakumar's case had also referred to the improving situation in Sri Lanka: "The Secretary of State also noted that, from information at his disposal, he was aware that widespread human rights abuses, which had taken place in recent years, had sharply declined and that the Sri Lankan government had taken measures to protect the human rights of all its citizens as a result of pressure from bodies such as Amnesty International and Donor Governments. He also noted that the Human Rights Force had been set up, and international bodies such as the International Committee of the Red Cross, the United Nations Working Group, Donor governments and Amnesty International, had all been allowed to visit Sri Lanka and had worked to introduce a new sense of discipline and accountability in the police and armed forces. The Secretary of State also noted that the Sri Lankan government had publicly accepted their responsibility for investigating alleged violations of human rights by the Security Forces and prosecuting offenders, and that the Ministry of Defence had issued clear directives to Security Forces for the strict observance of, and respect for, human rights." (i) The case with regard to the round-ups The appellants' arguments

[24]Mr. Macdonald's essential argument is that the appellate authorities have mis-directed themselves in law in regarding these mass arrests of Tamils as justifiable rather than as arbitrary, unlawful and amounting to persecution for a Convention reason - i.e. for being a Tamil. They are, he submits, in breach both of the International Covenant on Civil and Political Rights (the 1966 Covenant) to which Sri Lanka is a party, and of Sri Lankan domestic law. Those are, he argues, important considerations in determining the ultimate question which has to be addressed here: whether the risk of such arrests and detentions gives rise to a well-founded fear of being persecuted for being a Tamil.

[25]As to what precisely is meant by "persecution" in the 1951 Convention, Mr. Macdonald invites our attention first, to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1979); second, to the single English authority which attempts any definition of the term - Nolan, J.'s first instance decision in R v IAT ex parte Jonah (1985) ImmAR 7; and third, to Professor Hathaway's 1991 Canadian publication, The Law of Refugee Status.

[26]It is convenient to start with the 1966 Covenant and Sri Lanka's own law. The relevant Articles of the 1966 Covenant are these:

"9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 4(1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin. 4(3) Any State Party to the present covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations of the provisions from which it has derogated and of the reasons by which it was actuated."

[27]As to Sri Lankan law, all that is before us is the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979, section 6(1) of which permits the arrest without a warrant of any person "connected with or concerned in or reasonably suspected of being connected with or concerned in any unlawful activity".

[28]There is reference in the papers before us also to Sri Lankan Emergency Regulations but the details of these are not known.

[29]Mr. Macdonald's short submission with regard to those provisions is that the mass round-ups of young male Tamils such as are described in the determinations under appeal clearly offend against them: those arrested cannot be said individually to be "reasonably suspected of being connected with or concerned in any unlawful activity". Rather the great majority will prove not to be genuine suspects at all. They have accordingly been deprived of their liberty otherwise than in accordance with legal grounds and procedures so as to breach Article 9 of the 1966 Covenant and there is no suggestion that Sri Lanka has sought to derogate from that obligation. The arrests and detentions are, moreover, it is argued, for a Convention reason: only Tamils are rounded-up and they are rounded-up only because they are Tamils (or, at the very least, only because they are Tamils within one of the given sub-groups identified by the already quoted February 1994 Amnesty Report).

[30]Turning to the meaning of persecution within the 1951 Convention, paragraph 51 of the UNHCR Handbook says this:

"51. There is no universally accepted definition of 'persecution', and various attempts to formulate such a definition have met with little success. From Article 33 of the 1951 Convention it may be inferred that a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution. Other serious violations of human rights - for the same reasons [i.e. for a Convention reason] - would also constitute persecution."

[31]Nolan, J. in Ex parte Jonah applied to the word 'persecution' its ordinary meaning as found in the dictionary:

"To pursue with malignancy or injurious action; especially to oppress for holding a heretical opinion or belief."

[32]Nolan, J. further noted the comment to be found in Mr. Macdonald's own textbook on Immigration Law and Practice that persecution must be ' of a very serious kind' (in the new edition, Mr. Macdonald tells us, the word 'very' is to be omitted), and accepted "that considerations of policy may require a stringent test to be adopted if this country is not be flooded with those claiming political asylum."

[33]Professor Hathaway's work explores the concept of persecution in very considerable depth and much of it I found instructive. For present purposes, however, I think it sufficient to quote two short passages only. First this:

"In sum, persecution is most appropriately defined as the sustained or systemic 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 the third category which is either discriminatory or not grounded in the absolute lack of resources."

[34]Second, this:

"....the real risk of a human rights violation of the second category - arbitrary arrest or detention, denial of freedom of movement, opinion, association, or privacy for example - is usually to be equated with persecution. The only exception is short-term, emergency derogation of a non-discriminatory nature from a second category right, which under international law is insufficient to establish the absence of state protection."

[35]Footnoted to that reference to 'short-term' is this:

"Grahl-Madsen, for example, draws an arbitrary standard for determining when emergency detention is of sufficient duration to amount to persecution: 'When it comes to threats to freedom, it is hoped that my old conclusion still holds good: that imprisonment or detention for a period of three months or more constitutes persecution.'"

[36]Looking at those various definitions or approaches in the round, Mr. Macdonald argues that even in Colombo young male Tamils face a threat to their freedom. True, he acknowledges, wrongful detention of itself will not in all circumstances amount to persecution, but the evidence here is of repeated and widespread round-ups targeted at an ethnic group. The practice contravenes, he submits, internationally accepted standards of human rights.

[37]As illustrative of that proposition Mr. Macdonald refers us to the decision of the Canadian Federal Court of Appeal in Thirunavukkarasu v Minister of Employment and Immigration 109 DLR (4th) 682, another Sri Lankan Tamil asylum case. The judgment of the court given by Linden, J.A. includes these passages:

"While the appellant had twice been arrested in Colombo in 1989 by the police and subjected to beating and detention, the panel [the refugee panel from whom the appeal lay] held that these arrests were part of the Sri Lankan government's "perfectly legitimate investigations into criminal and/or terrorist activities" by Tamil organisations. In my view, beatings of suspects can never be considered "perfectly legitimate investigations", however dangerous the suspects are thought to be." "

[38]Mr. Pleming QC argues first that the limited loss of liberty suffered as a result of these round-ups is not sufficiently serious to constitute persecution. The threat to freedom contemplated by Article 33 and by paragraph 51 of the UNHCR Handbook is, he submits, a term of detention related to life imprisonment, measurable in years rather than days. Failing that he would no doubt seek to rely upon Professor Hathaway's foot-noted reference to 'a period of three months or more'. Alternatively, he argues, even if such loss of liberty does constitute persecution, it is not persecution for a Convention reason: young male Tamils are not arrested and detained because they are Tamils but rather because they may have been involved in some outrage. The round-ups are not, he submits, arbitrary. The very fact that the particular sub-groups identified by the Amnesty Report are especially vulnerable to arrest shows that the true objective of the round-ups is to combat terrorism rather than discriminate against Tamils as such. In this connection Mr. Pleming refers us to a passage from Lord Keith's speech in Ex parte Sivakumaran at page 995:

"It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that Army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils such as young males in the north of the country, were being subjected to persecution for any Convention reason."

[39]Mr. Macdonald has, of course, 'seriously maintained' that very case, but no more persuasively, submits Mr. Pleming, than the court found in Ex parte Sivakumaran. Conclusions

[40]In my judgment, the issue whether a person or group of people have a "well-founded fear [i.e. a real risk - see Ex parte Sivakumaran ] of being persecuted for [Convention] reasons" - and similarly the Article 33(1) and Rule 180B(c) issue whether such a person's "freedom would be threatened" for a Convention reason -raises a single composite question. It is, as it seems to me, unhelpful and potentially misleading to try to reach separate conclusions as to whether certain conduct amounts to persecution, and as to what reasons underlie it. Rather the question whether someone is at risk of persecution for a Convention reason should be looked at in the round and all the relevant circumstances brought into account. I know of no authority inconsistent with such an approach and, to my mind, it clearly accords both with paragraph 51 of the UNHCR Handbook and with the spirit of the Convention.

[41]It follows that I for my part would follow a rather different approach to that of counsel on both sides. Take Mr. Pleming's submissions. If the real purpose of these round-ups was to deprive Tamils of their liberty simply out of hostility towards them (i.e. with "malignancy"), I cannot think that the loss of freedom involved would properly be held insufficient to constitute persecution. Equally, if there remained a practice of torturing those detained, I very much doubt whether a finding of persecution on Convention grounds would be precluded merely because the torture was intended to discourage terrorism or to persuade detainees to inform on their associates rather than inflicted for purposes of oppression.

[42]What then are the circumstances relevant to the single composite question to be asked in the present cases? Clearly they include the following: (i)The frequency of round-ups and the length of the detentions resulting; (ii)The situation prevailing in Colombo at the material time and the Sri Lankan government's undoubted need to combat Tamil terrorism; (iii) The true purpose of the round-ups and the efforts made to arrest and detain only those realistically suspected of involvement in the disturbances.

[43]As may readily be seen from the passages quoted from the determinations under appeal, the appellate authorities did indeed focus on all these central considerations. They made the point that in 1993 the situation in Colombo was critical and involved periodic outrages and assassinations. They made the point that those particularly at risk of arrest were young men recently arrived in Colombo, without a job or family there, and without identity documents - 'prime suspects' as Mr. Pleming called them. Indeed, in Rajendrakumar's case, Mr. Quinn found 'no serious risk that he would be picked up and questioned'. They made the point that most of those detained were released after a reasonable time.

[44]In my judgment these considerations amply support the appellate authorities' conclusion in each of these cases that the appellants' claim to refugee status has not been made good. With one exception I would reject all of Mr. Macdonald's criticisms of the various determinations. In particular I cannot accept that, even supposing these round-ups to be unlawful under Sri Lankan law and the 1966 Covenant, they are thereby necessarily to be regarded as involving persecution for a Convention reason. Justified or not, the loss of liberty involved is relatively limited and although in one sense the arrests are clearly ethnically based they are obviously directed not to the oppression of Tamils as such but rather to the maintenance of public order.

[45]The one criticism of these determinations which I do accept is of the appellate authorities' conclusion that these round-ups are' justified'. Clearly they are not justified unless they are lawful. It must not be thought that this court would ever condone unlawful state conduct. Whilst I accept Mr. Pleming's submission that there is insufficient evidence before us to be clear whether or not the round-ups breach Sri Lankan law and the 1966 Covenant, there appears to me at least a prima facie case here of unlawful arrests and detentions, however understandable they may be in the present context. That conclusion, however, is to my mind wholly insufficient to make good these appeals. (ii) The case with regard to ill-treatment of detainees

[46]Unlike the Canadian Refugee Panel in Thirunavukkarasu , the appellate authorities here have not regarded ill-treatment as 'perfectly legitimate' but rather as 'excesses of the past' against which there is now greater protection. In essence the appellate authorities' conclusion is that there is now no significant risk of such ill-treatment in Colombo.

[47]It is this finding which Mr. Macdonald seeks to attack by reference to the date at which the assessment of risk is properly to be made. The relevant date is, he submits, that of the Secretary of State's decision; the appellate authorities' jurisdiction is confined to reviewing whether or not the applicant was a refugee when refused asylum by the Secretary of State. Accordingly, the argument runs, the appellate authorities here should have ignored rather than relied upon the improvements in the situation in Sri Lanka between the Autumn of 1993 when these three appellants were refused asylum and early 1995 when their appeals were finally dismissed.

[48]It is unclear whether the decisions here would have been any different even had the appellate authorities confined themselves to considering the situation in Sri Lanka in the Autumn of 1993; the improvements had, after all, started in 1991. But let it be assumed that the IAT, certainly in Sandralingham and Ravichandran's cases, by referring to the improvement as a still continuing process, were indeed regarding recent improvements as material to their assessment of the present level of risk. Were they right to do so?

[49]Laws, J. in refusing Rajendrakumar leave to move at first instance, said this:

".....there are cases in the books in which courts have held, not least in the context of the immigration rules related to primary purpose and marriage cases, that the task of the appellate authorities is to look at the situation at the time of the Secretary State's decision. Whatever may be the position in relation to primary purpose cases, I simply cannot believe that in these acutely important asylum cases the adjudicator is solemnly to ask himself a question not about the present but about the past; that he is to conduct a judicial exercise which is historic only. The whole purpose of the grant of special rights of appeal under the Asylum and Immigration Appeals Act 1993, to persons whose asylum applications have been turned down, is to secure protection for those who might in truth, turn out to be true refugees. I cannot believe that the appellate authorities should do anything but ascertain, when a case comes before them, whether the appellant with whom they are dealing is then and there a person with a well-founded fear of persecution."

[50]Mr. Macdonald acknowledges the good sense of that conclusion but submits that the case-law holding that appeals in immigration cases generally are concerned with the factual situation existing at the date of the decision under appeal applies equally to asylum appeals. The point is, he argues, ultimately one of statutory construction and it is section 19 of the Immigration Act 1971 upon which he relies.

[51]Let me at this stage set out the relevant statutory provisions, starting with section 8(1) of the Asylum and Immigration Appeals Act 1993: "8(1) A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention".

[52]So far so good: section 8 appears to look to a removal in the future and to raise on appeal the question whether that would contravene the Convention. By paragraph 4 of Schedule 2 of the 1993 Act, however, section 19 of the 1971 Act "shall have effect as if section 8 of this Act were contained in Part II of that Act". Part II of the 1971 Act deals with appeals, and section 19, so far as material, provides: " 19(1)........an adjudicator on an appeal to him under this Part of this Act -(a) shall allow the appeal if he considers - (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and

(b) in any other case, shall dismiss the appeal. (2) For the purposes of subsection (1)(a) above the adjudicator may review any determination of a question of fact on which the decision or action was based.....".

[53]With regard to immigration appeals generally (which, of course, are by no means restricted to primary purposes cases) there is no doubt whatever that appeals have to be dealt with on the basis of the factual situation existing at the time of the original decision against which the appeal is brought. That was established in 1982 in R v IAT ex parte Weerasuriya (1983) 1 AER 195 and R v IAT ex parte Kotecha (1983) 2 AER 289, and the rule has been applied in innumerable cases since. Does the reasoning in those cases apply equally, as Mr. Macdonald submits, to asylum appeals?

[54]Although I confess to finding this a difficult issue, I have concluded that the position is indeed different in asylum appeals. It is true that to a substantial extent the reasoning in Weerasuriya and Kotecha relies as a matter of construction on the use of the past tense in section 19(1)(a)(i) and (ii) (and indeed in section 19(2)), but the court relied also upon other considerations which they found reinforced their construction of section 19, principally the nature of the appellate structure in immigration cases. As Webster, J. said in Weerasuriya in a passage then approved by the Court of Appeal in Kotecha :

".....it is, as it seems to me, necessary to look at that appellate structure in order to ask oneself the question whether that appellate structure has to be regarded as an extension of the original administrative decision-making function or whether it is to be regarded as simply a process for enabling that decision to be reviewed. It seems to me it falls into the latter category rather than into the former category."

[55]I have reached the conclusion that in asylum cases the appellate structure as applied by the 1993 Act is to be regarded rather as an extension of the decision-making process. I am, I think, entitled to reach that conclusion as a matter of construction on the basis that the prospective nature of the question posed by section 8 of the 1993 Act over-rides the retrospective approach ordinarily required (implicitly) on a section 19 appeal. Section 8, after all, could, but does not, identify the ground of appeal as being that the appellant's removal "would have been" (rather than "would be") contrary to the United Kingdom's Convention obligations. Moreover, section 8(1) refers to a particular class of appeals and section 19 to appeals in general. It would be a strong thing to say that the general was to over-ride the particular.

[56]When it comes to the policy considerations, moreover, there are clearly good reasons for adopting a different approach in asylum cases. Whereas all ordinary immigration cases are entirely specific to the individual applicant and ask simply whether he or she qualifies under the rules, in asylum cases are necessarily concerned at least in part with the situation prevailing in a particular foreign country. Not only the Secretary of State but also the special adjudicators build up a body of knowledge about that situation and it would be unfortunate indeed if they are bound to ignore all that they know to have happened after a given historical date, the date of the Secretary of State's refusal of asylum. The situation might have changed for the better or it might have changed for the worse. In either event, if the appellate authorities were bound to ignore such changes, it would render their decisions substantially less valuable. If the situation had improved but, because the appellate authorities had to ignore such improvement, the appeal succeeded, the Secretary of State might nevertheless, in reliance upon Article 1C(5) of the 1951 Convention refuse the appellant refugee status. Article 1C(5) provides that the Convention ceases to apply if:

"(5) He (the refugee) can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to avail himself of the protection of the country of his nationality."

[57]Equally, had the situation deteriorated but, because this had to be ignored, the appeal failed, the claimant could put a fresh case to the Secretary of State. In either event, the appeal process could well have to start all over again. Lord Lane, C.J. in Kotecha concluded his judgment thus:

"......were the submissions of counsel for the appellant to be accepted as correct [i.e. were the appellant authorities obliged to look at new developments] it would mean a never-ending system of appeal, each court up the line being obliged to review the facts in the light of events as they stood, not at the time of the original decision but as they stood at each stage of the appellate system, and the system would become even more unmanageable than some people believe it to be at present."

[58]In asylum cases, that does not seem to me to hold true. It follows that in my judgment this ground of appeal also fails.

[59]Mr. Macdonald's third and final ground of appeal I can take altogether more shortly. It is that the IAT acted unfairly in the cases of Sandralingham and Ravichandran in giving no sufficient indication of their intention to look at the improving situation in Sri Lanka and no sufficient opportunity for the appellants to meet that new factual case.

[60]I unhesitatingly reject this argument. As Mr. Pleming demonstrated, both sides followed a gradual process of adding information as the appellate process took its course. By way of example, it was the appellants who introduced on appeal the Amnesty Report of February 1994. It is, moreover, plain from the IAT's own determination that the appellants' counsel had argued the point as to whether post-refusal developments were relevant evidence on appeal and it was necessarily implicit in this that, were his argument to fail, such developments would be brought into account. There is no evidence before us that he sought, and was refused, an adjournment to meet that difficulty.

[61]It follows that I find no substance in any of Mr. Macdonald's grounds and would dismiss the appeals and application before us. LORD JUSTICE STAUGHTON: I agree that these appeals and application should be dismissed. On the first point, as to whether the periodical round up of young Tamil males in Colombo must amount to persecution for the reason of race, we must not forget what the situation was in April and May 1993. Both the President of Sri Lanka and the Leader of the Opposition were assassinated by suicide bombs in one week; and this was, or at any rate was reasonably thought to be, the work of Tamils. We should not seek to discriminate too nicely as to what is and what is not the appropriate response of the forces of law and order in such circumstances. Persecution must at least be persistent and serious ill-treatment without just cause by the state, or from which the state can provide protection but chooses not to do so. On the material which Simon Brown LJ has analysed that does not cover the present cases.

[62]The ill-treatment of Tamils in detention which is said once to have prevailed in Sri Lanka is another matter. But on the evidence and findings in this case, it is not now a cause for apprehension if these young men are sent back there. The Canadian case of Thirunakkarasu v. Minister of Employment and Immigration (1993) 109 DLR (4th) 682 was decided on different evidence about a different time which led to a different conclusion.

[63]There remains the question as to what point of time should be the focus of a decision by a special adjudicator or the Immigration Appeal Tribunal. Section 8(1) of the Asylum and Immigration Appeals Act 1993 provides:

[64]A person who is refused leave to enter the United Kingdom under the 1971 Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the convention.

[65]That manifestly looks to the future at the date of the appeal. It reflects Article 33 of the 1951 Convention and gives rise to rule 180B of the Immigration Rules. In those circumstances the procedural provisions of section 19 of the Immigration Act 1971, as incorporated by paragraph 4(2) of Schedule 2 of the 1993 Act, must yield if and in so far as they would otherwise confine the appellate tribunals to the facts that existed at the time of the Secretary of State's decision. LORD JUSTICE NOURSE : I agree with both judgments. Order:application and appeals dismissed with costs not to be enforced without the leave of the court; legal aid taxation for the applicant and appellants; leave to appeal to the House of Lords refused. © Crown Copyright

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW v REGINA [1995] EWCA Civ 16

(A) (2) defines a "refugee" as any person who:

(i) The round-ups

Cited in 2 later judgments