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Devaseelan (Second Appeals - ECHR - Extra-TerritorialEffect) Sri Lanka * [2002] UKIAT 00702

IMMIGRATION APPEAL TRIBUNALDates of hearing: 19 July 2001

15 August 2001Date determination notified: 13/3/2002

Before:Mr C. M. G. Ockelton (Deputy President)

Mr D. K. AllenMr P. R. Moulden

Between:

JUSTIN SURENDRAN DEVASEELANAPPELLANT

and

The Secretary of State for the Home DepartmentRESPONDENT

DETERMINATION AND REASONS

SUMMARY

1. This ‘starred’ determination gives the Tribunal’s viewon a number of issues raised by human rights appealsand, particularly, human rights appeals by Tamils fromSri Lanka. At paragraphs 39-42 there are guidelineson how a second Adjudicator should approach thedetermination of another Adjudicator who has heardan appeal by the same Appellant. Our views on the‘extra-territorial effect’ of Articles 5 and 6 of theEuropean Convention on Human Rights are atparagraph 110. Our conclusions on whether, ingeneral, the removal of Tamils to Sri Lanka breachesArticles 3, 5, 6, 8 or 14 of the Convention are atparagraphs 82, 87, 112, 124 and 126-7.

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INTRODUCTION

a. The history of this appeal

2. The Appellant is a citizen of Sri Lanka. His date ofbirth is given as 22 September 1975. He came to theUnited Kingdom on 22 August 1996. He was carryinga false passport. He claimed asylum. On 30 October1996 he was refused asylum. He appealed. Hisappeal was heard by an adjudicator on 2 May 1998.The Appellant, who was represented by anexperienced firm of solicitors, expressly elected tohave his appeal determined on the basis of thedocumentary evidence on file. The adjudicatorconsidered that evidence, which included the recordof the Appellant’s interview in which he set out hisstory of what he claimed had happened to him in SriLanka. The adjudicator studied the evidence. Heconcluded that the Appellant’s story was not the truth.He wrote as follows:

‘I do not accept that it is reasonably likely thatthe Appellant was detained, ill-treated andreleased in the circumstances that he hasdescribed. This alleged incident is the onlyactivity by the authorities, which wasdeliberately targeted at the Appellant. I haveaccepted that his home may well have beendamaged during the military offensive, but I donot accept that the conduct of the militaryoffensive can be classed as persecution of theTamil population in the Jaffna Peninsula, or ofthe Appellant and his family in particular. Forthe foregoing reasons, I do not accept that theAppellant had a well-founded fear ofpersecution by the authorities when he left SriLanka. Nor do I accept the claim, at paragraph2 of the grounds that Tamils in Sri Lanka are apersecuted group per se.’

3. He went on to examine the country evidence, and toconsider whether the Appellant could, in his ownparticular circumstances, be lawfully returned toColombo. He concluded that returning the Appellantto Colombo would not breach the Refugee Convention.He dismissed the appeal.

4. A party dissatisfied with the determination of anadjudicator has (and at the time in question had undersection 20 of the Immigration Act 1971) a right ofappeal to the Tribunal, subject to any requirement as

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to leave. The Appellant did not apply for leave toappeal. He did not challenge the adjudicator'sdecision. His only claim to be in the United Kingdomhad failed. He had no right to remain here. Yet he didnot leave; and, so far as we are aware, the Secretaryof State took no steps to remove him.

5. On 2 October 2000 the Human Rights Act 1998 cameinto force. On 10 October solicitors on behalf of theAppellant, Sri and Co., wrote to the Immigration Officeat Heathrow. They were not the Appellant’s previoussolicitors: they said they had been instructed onlythat day. The letter includes a new claim for asylum.It is based on the solicitors’ expressed opinion that“the situation has deteriorated further”. That opinionis supported, in the letter, by selective references todocumentation, some of which was already quite old.The letter suggested that documents not availableearlier should be taken into account in assessingwhether the Appellant is, after all, a refugee. It furthersuggested that, if the Immigration Officer were notminded to consider a fresh claim for asylum, he referthe case to an adjudicator under section 21 of the1971 Act. That, as the solicitors should have known,was impossible: for 2 October 2000 also saw therepeal of section 21 together with the whole of therelevant Part of the 1971 Act.

6. The solicitors’ letter went on to claim, as analternative, that the Appellant’s removal would be abreach of the European Convention on Human Rights.With astonishing ignorance of the field of law in whichthey do so much work, Sri and Co. write of “Art. 3ECHR, which is soon to be incorporated into domesticlaw in the form of the Human Rights Act.” If Sri andCo. were not, on 10 October 2000, aware that theHuman Rights Act was already in force, that is entirelyreprehensible.

7. The Secretary of State replied to the solicitors’ letteron 21 November 2000. He indicated that, in his view,the matters set out in the solicitors’ letter did not showthat the claim to asylum now being made wassufficiently different from that which was madeoriginally. He declined to entertain the letter as afresh claim. He went on to consider the Appellant’sclaim that his removal would breach the EuropeanConvention on Human Rights, specifically Articles 3, 5and 14, to which the solicitors’ letter had referred. Hesaid that he had decided that the information before

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him did not merit a grant of exceptional leave toremain – that is to say, a guarantee against removal.He informed the solicitors that the Appellant had aright of appeal on human rights grounds. He served aOne-Stop Notice.

8. As the Secretary of State’s letter points out, theAppellant had no right of appeal to the AppellateAuthority against the decision not to treat the letter of10 October as a fresh claim for asylum. The onlypossible challenge would be by judicial review. So faras we are aware, no such challenge was made. Theposition so far as the Appellant’s refugee claim isconcerned is that he failed to establish that it wasbased on truth; that there have been judicial andadministrative decisions that he is not a refugee; andthat he has not pursued challenges to those decisions.

9. The Statement of Additional Grounds attached to theOne-Stop Notice was completed and returned. Itclaims that the Appellant’s return to Sri Lanka wouldbreach Articles 3, 6, 9 and 14. The Secretary of Statereplied that he did not consider that that would be thecase, and issued appeal forms. The grounds ofappeal, sent in by a different firm of solicitors again,Tony Purton Solicitors, are that the Appellant’s returnwould breach Articles 2, 3, 5 and 14. The Appellant’shuman rights appeal was heard by an adjudicator, MrA.J. Olson, on 16 February 2001. Articles 2, 3 ,5 ,6 and14 were argued. The adjudicator heard oral evidencefrom the Appellant. He dismissed the appeal.

10. It is against that determination that the Appellantappeals to the Tribunal. The grounds of appeal raiseArticles 3, 5, 6 and 14.

11. Leave was granted because, in the opinion of a VicePresident, “the grounds raise several important issuesincluding to what extent an adjudicator in an appealbased solely on human rights grounds should rely onfinding made in a previous determination dealing withan asylum claim. The parties will need to address thequestion, among others, of the relevance to this caseof the findings of the European Court of Human Rightsin the TI v UK case.” The findings in TI v UK are, asboth parties have acknowledged, of no directrelevance to this appeal. They are concerned withreturn of a Sri Lankan Tamil to Germany; the court didnot consider the merits of the claimant’s claim that hisreturn to Sri Lanka would breach the Convention; and,

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in any event, as Miss Giovanetti pointed out, the mostrecent document before the court dated from 1998.

12. We are, however, concerned with the relevance offindings in a previous determination relating to thesame Appellant, and we are concerned with whetherthis Appellant’s return to Sri Lanka would breach theEuropean Convention on Human Rights. Mr Lewis,who appeared for the Appellant, instructed by TonyPurton solicitors, expressly disavowed reliance onArticles 2 and 9, but argued Articles 3, 5, 6, 14 and(for the first time) 8. The Secretary of State wasrepresented by Miss L. Giovanetti, instructed by theTreasury Solicitor. We have been very greatly assistedby the submissions on both sides, and for the orderlyway in which the copious documentary material hasbeen presented.

13. We intend no criticism of Mr Lewis, who put all hisarguments with his usual elegance and conciseness.We would, however, generally expect that an Appellantwho claims that his human rights are threatened, wouldbe able to say, at an early stage, precisely what rightsare being threatened. The Human Rights Act 1998 andsection 65 of the Immigration and Asylum Act 1999 areintended to protect human rights; and, in appropriatecases, they provided that protection by prohibiting anindividual’s expulsion. As a result, certain individualsmay have a claim to remain in the United Kingdom. Butthat is not the purpose of the legislation. A claimantwho chops and changes between various Articles mayraise the suspicion that he is not actually trying toprotect any human rights of his but is merely seeking touse whatever means he can to remain in the UnitedKingdom.

14. The hearing before the Tribunal was on 19 July 2001and 15 August 2001. There were then further writtensubmissions by the Secretary of State. No date hadbeen fixed for the Appellant’s reply to thosesubmissions. No reply has been received.

b. The situation in other European countries

15. One point was unresolved at the hearing and is in asense still unresolved. As we shall in due courseexplain, and as Mr Lewis readily accepted, many of thehuman rights arguments deployed by this Appellantcould be deployed with equal force by almost anyyoung male Tamil from Sri Lanka. They are not

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necessarily any the worse for that. But, if thosearguments are successful, the consequence is thatalmost no young male Tamil can be returned to SriLanka without there being a breach of the EuropeanConvention on Human Rights. Again, that is no reasonfor not regarding the arguments as having substance.The position we find ourselves in, however, is that theUnited Kingdom, although an original signatory of theConvention, is a newcomer to human rights law as acentral part of the national legal system. The rightswhich are incorporated into United Kingdom law by the1998 Act are, however, not new rights. They are therights set out in the Convention, and explored andrefined in half a century of decisions of the EuropeanCourt of Human Rights in Strasbourg. Section 2 of the1998 Act makes that clear. They are also the rightsthat have been part of the national law of many otherEuropean countries for many years.

16. As Lord Steyn expounded in the House of Lords in R vSSHD ex parte Adan [2001] 2 WLR 143, 153, the task ofa court applying an international convention is todiscover the autonomous meaning of the treaty inquestion. The jurisprudence of individual countries isnot an infallible guide to that meaning, as Adan itselfdemonstrates. But the practice of other parties to theconvention must be relevant, especially where, as inthe case of the European Convention on Human Rights,the correctness of individual governmental decisionscan readily be tested by application to a judicial bodycharged with applying the Convention. If a particularevent occurs frequently, and has not been the subjectof successful challenge, even in countries that have hadthe European Convention on Human Rights as part oftheir national law for many years, it may be that thatevent does not, in truth, breach the Convention. Weshould be rather cautious in reaching a conclusion thatthe regular practices of other countries, that have amuch more developed national law of human rightsthan we have, are practices which breach theConvention.

17. Asylum claims by young male Tamils from Sri Lanka areby no means unique to the United Kingdom. UNHCRfigures show that there were 17,455 applications forasylum by Sri Lankans in the year 2000. Not all thoseapplications were in Europe: nearly three thousand, forexample, were in Canada. The leading destination forasylum claimants was the United Kingdom, with 6,035applications. France had 2,117, Germany had 1,170

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new applications and, under a procedure unique toGermany, 722 repeat applications; the Netherlandsand Switzerland each had the best part of a thousand.The vast majority of these claims were unsuccessful inachieving either refugee or humanitarian status. Therecognition rate of refugees in Germany was 9%, in theNetherlands, 20 cases, an entirely insignificantproportion of the total applications, which, whenrounded to the nearest whole number, is entered bythe UNHCR as ‘0%’ - although the figures rises to 5%when appeal reviews are included; in Switzerland ‘0%’;in the UK 7%. In France the figure is much higher, at43%, but even there there are well over a thousandindividuals who failed to obtain refugee status in 2000.In each of the countries we have mentioned, there is aseparate possibility of achieving what is called, forpurposes of analysis, ‘humanitarian status’, if theclaimant does not establish that he is a refuge. Thenumber of grants of such status – the reasons for whichwould include (but not be limited to) non-returnabilityfor human rights reasons - was 8 cases in Germany,none in France, and 71 cases in the Netherlands. Thefigure in Switzerland was much higher. The reason forthis is unclear, but it may be related to the fact thatSwitzerland began the year with an enormous backlogof applications from previous years. Although therewere very few decisions recognising refugee status,53% of decisions were to grant humanitarian status.The figures still show that – because of the processingof the backlog – there were 7,095 individuals whoseclaims were rejected outright. The total outrightrejections in 2000 for the four countries we havementioned was 9,784.

18. We are aware that other European countries do returnunsuccessful asylum claimants to Sri Lanka. Not onlythat, but the figures we have quoted show that thereare very substantial numbers whose return isthreatened, because they have failed to obtain status intheir country of claimed refuge. It is not suggested thatthis is a new feature in the year 2000. We thereforeasked Mr Lewis if he was able to point to any decisionin any national court in any European country indicatingthat the return of young Tamils to Sri Lanka was abreach of their human rights protected by theConvention.

19. He was unable to do so. Since the hearing we havemade such researches as we have been able, and wealso have not discovered any such decision. Mr Lewis

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accepted that the lack of information meant that he wasunable to show that there are human rights objectionsto the removal of Tamils to Sri Lanka from any otherEuropean countries.

20. That is, of course, not a conclusive argument againstthe Appellant. It may be that none of the othercountries has properly understood the meaning of theConvention. Or it may be that no Tamils threatenedwith removal to Sri Lanka have been properly advised.Or there may be some other explanation. But theabsence of any specific support for the Appellant’sarguments, in the host of similar cases arisingelsewhere in Europe, is a factor that we must bear inmind in attempting to assess what impact theConvention has on his case.

SECOND APPEALS

a. The approach of the second adjudicator in thisappeal

21. We must first consider in some detail the approach ofthe second Adjudicator, Mr Olson, to the evidencetendered on the Appellant’s behalf and to his fact-finding role. We have already set out the firstAdjudicators conclusions on the evidence on which theAppellant relied in attempting to establish his claimunder the Refugee Convention.

22. At the hearing before Mr Olson, the Appellant’srepresentative said that the Appellant wanted to raisethe issue of scarring. That is to say, he claimed thatscars on his body would expose him to risk on return.He showed the Adjudicator his scars. He then brieflygave oral evidence, which was noted by theAdjudicator as follows:

‘I was i/v’d on arrival in England. Everything Isaid was true. I adopt record of i/v. I havescars on body, which are result of accident. XX If I was sent back – you know situation inSri Lanka young boys lives are under threat. Ifound out that those returned are put in jail for3 years. They tortured them I’m frightened ofgoing there. I found out thro his friend. I hadthe scars when I left Sri Lanka. I left by planethro airport. The authorities didn’t notice thescarring then.

In my asylum claim I was only detained once

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I’d lived in Sri Lanka 21 years.’

23. There was no other oral evidence. The Adjudicatorheard submissions from both representatives. Therewas reference to authorities and to documentaryevidence. Mr Olson expressed his decision in thefollowing way.

6. Decision

6.1 This is an appeal under Section 65 (1)of the Immigration and Asylum Act 1999 onthe grounds that removal of the Appellant toSri Lanka would be in breach of Articles 2, 3, 5and 14 of the ECHR and Human Rights Act1998.

6.2 The Appellant must demonstrate thatthere are substantial grounds for believingthere is a real risk that one or more of theArticles will be breached.

6.3 The Appellant has previously appealedagainst the refusal of his asylum claim and theappeal was dismissed because the Adjudicatorwas not satisfied that it was reasonably likelythat the Appellant was detained, ill-treated andreleased in the circumstances that hedescribed and he did not accept that theAppellant had a well founded fear ofpersecution by the authorities when he left SriLanka.

6.4 The Appellant accepted that in hisasylum claim he had only been detained onone occasion and although he said he hadscars when he left Sri Lanka, he admitted thatthey were caused as a result of an accidentrather than through any ill-treatment.

6.5 Mr O’Callaghan relies mainly on thebackground evidence to support theAppellant’s case, rather than the evidence ofthe Appellant himself. I have noted thedecision of the European Court in Vilvarajah –v- United Kingdom (1991) 14 EHRR 60 that itwas not considered enough that there was agenerally political situation in Sri Lanka andthat some Tamils might be detained or ill-treated.

Claim under Articles 2 and 3.

6.6 Having regard to the Appellant’sbackground and the fact that he had on hisown account only been detained on oneoccasion and failed to satisfy either theRespondent or the Adjudicator to the lower

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standard of proof required in asylum casesthat he had been ill-treated. I do not considerthat there is a serious or real risk that he willbe targeted by the authorities on his return orbe killed, tortured or suffer inhuman ordegrading treatment or punishment.

6.7 At worst he might be questioned abouthis identity before being allowed to go.

Claim under Article 5.

6.8 I have noted the decision of theEuropean Court in Murray & Ors –v- UnitedKingdom (1996) 22 EHRR 29 in which it washeld that the level of suspicion required neednot be sufficient to charge the detainee and inBrogan & Ors –v- United Kingdom (1998) 11EHRR 117 detaining suspects to further policeinvestigations by way of confirming ordispelling concrete suspicions of terrorism didnot breach the Convention.

6.9 I did not consider that there were anysubstantial grounds for believing that anydetention to which the Appellant might besubjected for identification for identificationpurposes on his return to Sri Lanka would be inbreach of Article 5.

Claim under Article 6

6.10 As pointed out by the Respondent’srepresentatives in his submission, there wasno evidence that the Appellant would face atrial or hearing before a Court in Sri Lanka, letalone that he would face an unfair trial. Themere possibility that he might at some stage inthe future be brought before a Court where hecould not understand the proceedings was notin my view sufficient to show a real risk of abreach of Article 6.

Claim under Article 14

6.11 As has been accepted by both parties tothis appeal, this Article is not “freestanding” andas the Appellant has not shown that there is areal risk of a breach of any of the other Articlesof the ECHR. I have concluded that he has failedto show a “difference in treatment” that hewould suffer on return to Sri Lanka, which hadno reasonable or objective justification.

6.12 He has failed to show that he would betreated less favourably than others who are in asimilar situation to himself as a returning failedTamil asylum seeker.

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6.13 For the above reasons this appeal isdismissed.

24. It is clear that the second Adjudicator took the firstAdjudicator’s determination of the Appellant’s asylumappeal as his starting point in reaching his conclusionon the Appellant’s human rights appeal.

b. The phenomenon of second appeals

25. The coming into force of the Human Rights Act 1998and section 65 of the 1999 Act has led, in a largenumber of cases, to the possibility of a second appeal toan Adjudicator. Those individuals whose appeals were(originally) determined well before 2 October 2000 may,if removal is now threatened, make an allegation thattheir removal will breach their human rights. Theyhave a right of appeal under section 65. Those who hadan appeal pending on 2 October 2000 against animmigration decision taken before that date cannot, inthat appeal, raise matters relating to their humanrights, because the relevant provisions of the 1999 Actapply only to decisions taken after 1 October. It isperhaps arguable that human rights issues could beraised in a pending appeal to an Adjudicator or theTribunal under section 7 (1) (b) of the 1998 Act: but inPardeepan (00 TH 2414) the Tribunal accepted anundertaking by the Secretary of State that suchindividuals would be allowed to raise human rightsissues if threatened with removal after the dismissal oftheir appeal. Their position is thus assimilated to thosewhose appeals ceased to be pending before 2 October2000.

26. The 1999 Act is designed to encourage claimants to putforward all their grounds for staying in the UnitedKingdom in one appeal. Typically, therefore, where theappeal is against a decision made after 1 October 2000,the Adjudicator will consider such human rights groundsas are raised before him. If the claimant attempts toreserve human rights points for a later allegation, hemay be met by a certification under section 73 (2) ofthe 1999 Act, essentially putting an end to his claim.But if there is no certification (for example, if the humanrights claim depends on facts that have arisen onlysince the date of the appeal), then again there may bea second appeal to an Adjudicator if actual removal isthreatened.

27. The possibility of a second appeal will continue to arise

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in practice because the Secretary of State does not, inthe majority of cases, attempt promptly to enforcedecisions of the Immigration Appellate Authorities.Broadly speaking, an adverse decision by anAdjudicator or the Tribunal has no immediate effect onthe claimant’s continued presence in the UnitedKingdom (although it does affect the payment ofbenefits to him). An unsuccessful claimant is thesubject of proposed removal (if at all) only after apassage of time. In that time he may have been able todiscover more about the situation and his prospects inhis own country; or the situation in his own country mayhave changed for the worse; or he may have developedfamily links or medical conditions relevant inconsidering rights under Article 8. These are, of course,only examples.

28. Parliament clearly recognises the possibility of a secondappeal to an Adjudicator within the structure of the1999 Act. The considerations set out above show that asecond appeal is, and will continue to be, by no meansunusual. In this context the question we have to decideis what effect the determination of the Adjudicator inthe first appeal should have on the decision-makingprocess of the Adjudicator in the second appeal.

29. The law relating to the previous Adjudicator’sdetermination when an appeal is remitted is of norelevance here. It is well established that when anappeal is remitted for rehearing an Adjudicator shouldhave no regard to any previous determination, andshould not even look at it except with the consent ofall parties. But that is because the previousdetermination has been set aside. In cases such asthe present, the determination has not been set aside.It remains in full force as the determination of theAppellant’s original claim.

c. Submissions relating to procedure

30. Mr Lewis complained that the second Adjudicator failedto make any explicit reference in his decision to thecopious documentary evidence before him, some ofwhich referred to frequent, routine ill-treatment ofdetainees. He argued that, although the firstAdjudicator found that the Appellant had notestablished that he had been beaten ‘to the extentclaimed’, he had apparently made no finding onwhether the Appellant had suffered some lesser form of

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physical ill-treatment. In basing his findings so firmlyon the first Adjudicator’s conclusions, the secondAdjudicator had failed to give independentconsideration to these issues, which might establish abreach of the European Convention or Human Rights.Mr Lewis argued that the circumstances of this caseillustrate the ‘potential errors in relying upon a factualassessment in an asylum appeal when considering ahuman rights appeal’.

31. Mr Lewis went on to submit that in a case such as this,the previous determination is merely ‘a relevant matterto be taken into account’ in the human rights appeal,but that neither the findings nor the conclusions of thefirst Adjudicator are binding upon the secondAdjudicator. He further said that it is ‘of significance’ inthis case that the Appellant did not appear before thefirst Adjudicator but gave evidence before the secondAdjudicator. His written skeleton argument on thisissue concluded as follows:

‘2.10 In the circumstances it is submitted thatthe second Adjudicator has erred in failing tomake an independent assessment of theAppellant’s history, and further or alternativelyin failing to set out with sufficient clarity hisprimary factual findings and the reasons forthose findings.

It is further submitted that these errors arecompounded by the second Adjudicator’sfailure to make any reference to thebackground evidence.

2.11 Further to the above it is submitted thatthis deficiency in the second Adjudicator’sdetermination can only be remedied to theAppellant’s satisfaction by either an acceptancein its entirety of his account, or a fresh hearing(either before the IAT or by way of remittal to adifferent adjudicator).’

32. In his oral submissions Mr Lewis pointed out that inrelation to new evidence, Ladd v Marshall [1954] 1 WLR1489 could not apply in proceedings such as thepresent, because the appeal is a new one. Heacknowledged, however, that where an Appellant reliedbefore a second Adjudicator on material that (for nogood reason) he did not tender to the first Adjudicator,there may need to be an assessment of credibility. Healso submitted that the second Adjudicator should givehis reasons for agreeing or disagreeing with the firstAdjudicator’s assessment. He asked us to look at the

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first Adjudicator’s determination not as something thatought generally to be applied to the determination ofthe second appeal, but merely as part of thebackground. The second Adjudicator was, in his view,entitled simply to differ from the first Adjudicator and todetermine the appeal accordingly.

33. Miss Giovanetti agreed that the first Adjudicator’sdetermination cannot be regarded as binding on thesecond Adjudicator. She submitted, however, that itwas entirely proper for a second Adjudicator to haveregard to the first Adjudicator’s findings, and that thesecond Adjudicator should only differ from thosefindings where there is good reason to do so. If thehuman rights appeal was based on the same factualmatrix as the asylum appeal, a good reason might befound in a change in the situation in the country oforigin, or the availability of evidence that was notbefore the first Adjudicator. If the human rights claimwas based on a different factual matrix, it wouldgenerally be necessary to make new findings, probablyon additional evidence. The different factual matrixwould itself be a good reason for not following andapplying the first Adjudicator’s determination.Otherwise, however, legal and policy considerationsdemanded that the Appellant’s second appeal bedetermined in line with his first. She identified foursuch considerations.

34. The first is fairness: it would be unfair to an Appellant,who had satisfied the first Adjudicator that his accountof events was credible, to deprive him of the benefit ofthat finding. If that is right, it must follow that anAppellant who has failed to satisfy an Adjudicator of hiscredibility is not entitled to have the same evidence re-assessed by a second Adjudicator. It is not fair to thepublic for there to be a system in which favourablefindings stand but unfavourable findings are alwaysquestionable. Secondly, general principles ofconsistency and finality in litigation are important evenin the absence of a rule of res judicata. Thirdly, thegeneral approach to findings of fact in immigrationcases both on appeal to the Tribunal and outside theIAA (e.g. ex parte Danaie [1998] 1mm AR 84) is thatfindings of fact stand unless there is good reason todisplace them. Fourthly, it would, in Miss Giovanetti’ssubmission, be contrary to good administration to havea system which allowed for the continuing existence oftwo undisturbed determinations of the IAA containinginconsistent findings of fact in relation to the same

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individual.

35. Miss Giovanetti also submitted that it is clear from the1999 Act that the human rights appeal is not trulyindependent of an asylum appeal. We do not acceptthat: there may be cases where the two are properlylinked, but in a case such as the present there areclearly two appeals.

36. We should also say at this point that, at the hearing,there was some discussion of the possible applicabilityof rule 44, which allows summary determination where“the issues raised in an appeal have been [already]determined … in previous proceedings to which theappellant … was a party, on the basis of facts which didnot materially differ from those to which the appealrelates.” Rule 44 applies to a situation where, in asecond appeal, the issues may be the same as in thefirst although the evidence might (if the matterproceeded to a hearing) be different. The presentproblem is in a sense the reverse: the evidence mightbe largely the same and the facts might be largely thesame but the issue is one which has not been alreadydetermined. The first Adjudicator determinationwhether, at the date of his determination, theAppellant’s return to Sri Lanka would breach theRefugee Convention; whereas the second Adjudicatordetermines whether at the date of his determination,the Appellant’s return to Sri Lanka would be in breachof his human rights. Rule 44 has no obvious applicationto cases such as the present.

d. Our guidelines on procedure in second appeals

37. We consider that the proper approach lies between thatadvocated by Mr Lewis and that advocated by MissGiovanetti, but considerably nearer to the latter. Thefirst Adjudicator’s determination stands (unchallenged,or not successfully challenged) as an assessment of theclaim the Appellant was then making, at the time of thatdetermination. It is not binding on the secondAdjudicator; but, on the other hand, the secondAdjudicator is not hearing an appeal against it. As anassessment of the matters that were before the firstAdjudicator it should simply be regarded asunquestioned. It may be built upon, and, as a result,the outcome of the hearing before the secondAdjudicator may be quite different from what mighthave been expected from a reading of the firstdetermination only. But it is not the second

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Adjudicator’s role to consider arguments intended toundermine the first Adjudicator’s determination.

38. The second Adjudicator must, however be careful torecognise that the issue before him is not the issue thatwas before the first Adjudicator. In particular, time haspassed; and the situation at the time of the secondAdjudicator’s determination may be shown to bedifferent from that which obtained previously.Appellants may want to ask the second Adjudicator toconsider arguments on issues that were not – or couldnot be – raised before the first Adjudicator; or evidencethat was not – or could not have been – presented tothe first Adjudicator.

39. In our view the second Adjudicator should treat suchmatters in the following way.

(1) The first Adjudicator’s determination shouldalways be the starting-point. It is the authoritativeassessment of the Appellant’s status at the time it wasmade. In principle issues such as whether the Appellantwas properly represented, or whether he gaveevidence, are irrelevant to this.

(2) Facts happening since the first Adjudicator’sdetermination can always be taken into accountby the second Adjudicator. If those facts lead thesecond Adjudicator to the conclusion that, at the date ofhis determination and on the material before him, theappellant makes his case, so be it. The previousdecision, on the material before the first Adjudicatorand at that date, is not inconsistent.

(3) Facts happening before the firstAdjudicator’s determination but having norelevance to the issues before him can always betaken into account by the second Adjudicator.The first Adjudicator will not have been concerned withsuch facts, and his determination is not an assessmentof them.

40. We now pass to matters that could have been beforethe first Adjudicator but were not.

(4) Facts personal to the Appellant that werenot brought to the attention of the firstAdjudicator, although they were relevant to theissues before him, should be treated by thesecond Adjudicator with the greatest

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circumspection. An Appellant who seeks, in a laterappeal, to add to the available facts in an effort toobtain a more favourable outcome is properly regardedwith suspicion from the point of view of credibility.(Although considerations of credibility will not berelevant in cases where the existence of the additionalfact is beyond dispute.) It must also be borne in mindthat the first Adjudicator’s determination was made at atime closer to the events alleged and in terms of bothfact-finding and general credibility assessment wouldtend to have the advantage. For this reason, theadduction of such facts should not usually lead to anyreconsideration of the conclusions reached by the firstAdjudicator.

(5) Evidence of other facts – for examplecountry evidence – may not suffer from the sameconcerns as to credibility, but should be treatedwith caution. The reason is different from that in (4).Evidence dating from before the determination of thefirst Adjudicator might well have been relevant if it hadbeen tendered to him: but it was not, and he made hisdetermination without it. The situation in theAppellant’s own country at the time of thatdetermination is very unlikely to be relevant in decidingwhether the Appellant’s removal at the time of thesecond Adjudicator’s determination would breach hishuman rights. Those representing the Appellant wouldbe better advised to assemble up-to-date evidence thanto rely on material that is (ex hypothesi) now ratherdated.

41. The final major category of case is where the Appellantclaims that his removal would breach Article 3 for thesame reason that he claimed to be a refugee.

(6) If before the second Adjudicator theAppellant relies on facts that are not materiallydifferent from those put to the first Adjudicator,and proposes to support the claim by what is in essencethe same evidence as that available to the Appellant atthat time, the second Adjudicator should regardthe issues as settled by the first Adjudicator’sdetermination and make his findings in line withthat determination rather than allowing the matter tobe re-litigated. We draw attention to the phrase ‘thesame evidence as that available to the Appellant’ at thetime of the first determination. We have chosen thisphrase not only in order to accommodate guidelines (4)and (5) above, but also because, in respect of evidence

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that was available to the Appellant, he must be taken tohave made his choices about how it should bepresented. An Appellant cannot be expected to presentevidence of which he has no knowledge: but if (forexample) he chooses not to give oral evidence in hisfirst appeal, that does not mean that the issues or theavailable evidence in the second appeal are renderedany different by his proposal to give oral evidence (ofthe same facts) on this occasion.

42. We offer two further comments, which are not lessimportant than what precedes then.

(7) The force of the reasoning underlyingguidelines (4) and (6) is greatly reduced if thereis some very good reason why the Appellant’sfailure to adduce relevant evidence before thefirst Adjudicator should not be, as it were, heldagainst him. We think such reasons will be rare.There is an increasing tendency to suggest thatunfavourable decisions by Adjudicators are broughtabout by error or incompetence on the part ofrepresentatives. New representatives blame oldrepresentatives; sometimes representatives blamethemselves for prolonging the litigation by theirinadequacy (without, of course, offering the public anycompensation for the wrong from which they haveprofited by fees). Immigration practitioners comewithin the supervision of the Immigration ServicesCommissioner under part V of the 1999 Act. He haspower to register, investigate and cancel theregistration of any practitioner, and solicitors andcounsel are, in addition, subject to their ownprofessional bodies. An Adjudicator should be veryslow to conclude that an appeal before anotherAdjudicator has been materially affected by arepresentative’s error or incompetence; and such afinding should always be reported (througharrangements made by the Chief Adjudicator) to theImmigration Services Commissioner.

Having said that, we do accept that there will beoccasional cases where the circumstances of the firstappeal were such that it would be right for the secondAdjudicator to look at the matter as if the firstdetermination had never been made. (We think itunlikely that the second Adjudicator would, in such acase, be able to build very meaningfully on the firstAdjudicator’s determination; but we emphasise that,even in such a case, the first determination stands as

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the determination of the first appeal.)

(8) We do not suggest that, in the foregoing,we have covered every possibility. By covering themajor categories into which second appeals fall, weintend to indicate the principles for dealing with suchappeals. It will be for the second Adjudicator to decidewhich of them is or are appropriate in any given case.

e. Application of the guidelines to this appeal

43. The Appellant’s human rights appeal before the secondAdjudicator was based on the same factual matrix asthat on which he had relied in attempting to prove thathe was a refugee, with one addition, that is to say hisscars.

44. In addition, Mr Lewis submits that the first Adjudicatordid not make findings on matters which, although notestablishing past persecution, might give rise to asuccessful human rights appeal. He argues that thefirst Adjudicator, in declining to believe that theAppellant had been ‘beaten to the extent claimed’appeared to be accepting that the Appellant had beenbeaten to some extent. He further suggests that thefirst Adjudicator made no finding on whether theAppellant was made to eat cow dung and drink urineduring his detention.

45. There is no merit in those submissions, which rely, likeso many submissions relating to Adjudicators’determinations, on an unrealistic reading of parts of thedetermination and a disinclination to read thedetermination as a whole. If an Appellant claims tohave suffered in a particular way and the Adjudicatordoes not believe that he has suffered in that way, theAdjudicator is entitled to say so. It does not follow fromwhat the Adjudicator says that he thinks that theAppellant suffered in some other way that he did notmention. The position is that the Appellant has failed toshow that his evidence is worthy of belief. As a result,there is no evidential basis for a finding in his favour.

46. The first Adjudicator in the Appellant’s appealconsidered all the evidence adduced by the Appellantrelating to his claim to have suffered and to be at risk ofsuffering persecution. He concluded, on the basis ofthe evidence relating to the history of Sri Lanka at therelevant time, that it was ‘quite likely’ that theAppellant’s family house was damaged, that he and

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many others from his village had to leave the area, andthat the family ended up in a refugee camp inVavuniya. Following his review of the Appellant’s storyabout how he had been treated, he said that he did notthink that, if the Appellant had been beaten with theseverity he claimed, he would have not had any signs ofthe beating to show when he arrived in the UnitedKingdom. That is a rejection of the Appellant’s story ofhis beating. There was no other story of beating. In thecircumstances the Adjudicator would have been quitewrong to find that the Appellant had been beaten in anyother way, and he did not do so.

47. Indeed, after further analysis of the Appellant’s story,he said this: ‘I do not accept that it is reasonably likelythat the Appellant was detained, ill-treated and releasedin the circumstances that he has described’. The sameobservations apply. The Appellant had not provided analternative story. The Adjudicator rejected the onlyevidence there was of the Appellant’s detention, ill-treatment and release. That was a clear and completefinding.

48. It is true that in making that finding he did notspecifically refer to the Appellant’s claim that he hadbeen made to eat cow dung and drink urine. He did notneed to do so. Those claims were claims of ill-treatment. The Adjudicator said comprehensively thathe did not believe the evidence on such claims. Therecan be no doubt, however, that all that the Appellantsaid in relation to his past ill-treatment was relevant tohis asylum claim, for persecution may consist of acumulation of individual events of ill-treatment. The‘lesser form of physical ill-treatment’ to which Mr Lewisrefers in the hope of showing that the Adjudicator’sfinding was incomplete might not have been enough bythemselves to establish persecution. But they werepart of the Appellant’s story of ill-treatment, all of whichwas told in an effort to establish that he had beenpersecuted, and all of which had been rejected.

49. Mr Lewis then says that the Adjudicator should havemade reference to the documentary evidence. It isclear that the Adjudicator had documentary evidence inmind, for he made findings on the basis of it, relating tothe flight of the Appellant’s family from their village.The purpose that would have been served by hismaking specific references is entirely unclear. Theevidence is said to have demonstrated ‘the frequent,routine ill-treatment of detainees’. But, first, the

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Adjudicator had rejected the Appellant’s claim to havebeen ‘detained’ (although accepting that he had spenttime in a refugee camp); secondly, the Adjudicator didnot suggest that the evidence did not tell, within itslimits, an accurate story; and thirdly, the fact thatsomething is said to happen routinely does not meanthat it happened to the Appellant.

50. Before the second Adjudicator the Appellant relied onevidence that (with the exception of the scars) differedin no material way from what was before the firstAdjudicator and was considered by him in making hisdetermination. The first Adjudicator’s determinationhas never been challenged and, even before us, it wasnot suggested that it was not a perfectly adequatedetermination of the issues before him. For the reasonswe have given, we regard it also as a sufficientassessment of the credibility of the Appellant’s accountof the matters relevant to his present claim. In our viewthere was no reason at all for the second Adjudicatornot to follow it and to make his own findings in line withit, as he did.

51. There is no doubt that the Appellant has some scars.They therefore fall within the words in brackets inguideline 4. The evidence of the scars needed to bebuilt on to the Appellant’s failure to establish that hehad been ill-treated in the past. This the secondAdjudicator also attempted to do, in paragraphs 6.4, 6.6and 6.7 of his determination. Here, however, thesecond Adjudicator fell into error. Two things are clearabout scars in Sri Lankan Tamil cases. The first is thatnot every scar makes a person a refugee. The secondis that it is not the cause of the scars, but their effect,that counts. The question is whether the scars are suchas to give rise to the risk that a Sri Lankan official willthink that the person is an insurgent. The Adjudicatorwas wrong to treat the scars as of no importance forthe reason simply that they were admitted to havebeen caused accidentally.

52. Before him the only evidence about the nature of thescars was what he was invited to observe with his owneyes. The first Adjudicator had, as long ago as May1998, adverted to the lack of any medical report, andhad indeed made his findings partly on the basis that,as no medical evidence had ever been sought, theinference was that the Appellant knew that no suchevidence would help his case. The Appellant’s humanrights claim was made, as we have said, some two and

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a half years later, and this appeal was heard by theTribunal nearly a year later again. The Appellant’srepresentatives put in material amounting in total toover 500 pages, but there is still no medical report. Inother words, there is no proper description of the scarsfrom which we or anybody else could assess what risk,if any, they pose to the Appellant. In the circumstancesthere is no basis for a finding that the scars are such asto engender any risk.

f. What has the Appellant established?

53. The Appellant has failed to show a history of ill-treatment and has failed to show that the condition ofhis body is such as to expose him to ill-treatment. He isin the same position as any other young male Tamil:there are no personal factors heightening the risk.

THE APPEAL ON HUMAN RIGHTS GROUNDS

a. Introduction: the general law

54. He nevertheless presses his human rights claim on thebasis of evidence not relating to himself particularly butto Tamils generally. Mr Lewis does not shrink from theimplications of this. If the Appellant can succeed in thisappeal, no young male Tamil can be returned to SriLanka. That is why we made some reference to theinternational position in paragraphs 13-18 of thisdetermination.

55. It is to the Appellant’s general human rights claim thatwe must therefore turn and we begin by setting outthe Articles of the European Convention on HumanRights to which we shall be making reference.

Article 1

Obligation to respect human rights

The High Contracting Parties shall secure toeveryone within their jurisdiction the rights andfreedoms defined in Section 1 of thisConvention.

Section 1Rights and freedoms

Article 2

Right to life

1. Everyone’s right to life shall be

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protected by law. No one shall be deprived ofhis life intentionally save in the execution of asentence of a court following his conviction of acrime for which this penalty is provided by law.

2. Deprivation of life shall not be regardedas inflicted in contravention of this article whenit results from the use of force which is no morethan 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.

Article 3

Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5

Right to liberty and security

1. Everyone has the right to liberty andsecurity of person. No one shall be deprived ofhis liberty save in the following cases ad inaccordance with a procedure prescribed bylaw:

a the lawful detention of a person afterconviction by a competent court;

b the lawful arrest or detention of aperson for non-compliance with the lawfulorder of a court or in order to secure thefulfilment of an obligation prescribed by law;

c the lawful arrest or detention of aperson effected for the purposes of bringinghim before the competent legal authority onreasonable suspicion of having committed anoffence or when it is reasonably considerednecessary to prevent his committing an offenceor fleeing after having done so;

d the detention of a minor by lawfulorder for the purpose of educationalsupervision or his lawful detention for thepurpose of bringing him before the competentlegal authority;

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e the lawful detention of persons for theprevention of the spreading of infectiousdiseases, of persons of unsound mind,alcoholics or drug addicts or vagrants;

f the lawful arrest or detention of aperson to prevent his effecting an unauthorisedentry into the country or of a person againstwhom action is being taken with a view todeportation or extradition.

2. Everyone who is arrested shall be informedpromptly, in a language, which heunderstands, of the reasons for his arrest andof any charge against him.

3. Everyone arrested or detained inaccordance with the provisions of paragraph1.c of this article shall be brought promptlybefore a judge or other officer authorised bylaw to exercise judicial power and shall beentitled to trial within a reasonable time or torelease pending trial. Release may beconditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty byarrest or detention shall be entitled to takeproceedings by which the lawfulness of hisdetention shall be decided speedily by a courtand his released ordered if the detention is notlawful.

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.

Article 6

Right to a fair trial

1. In the determination of his civil rights andobligations or of any criminal charge againsthim, everyone is entitled to a fair and publichearing within a reasonable time by anindependent and impartial tribunal establishedby law. Judgment shall be pronounced publiclybut the press and public may be excluded fromall or part of the trial in the interests of morals,public order or national security in ademocratic society, where the interests ofjuveniles or the protection of the private life ofthe parties so require, or to the extent strictlynecessary in the opinion of the court in specialcircumstances where publicity would prejudicethe interests of justice.

2. Everyone charged with a criminal offenceshall be presumed innocent until proved guilty

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according to law.

3. Everyone charged with a criminal offencehas the following minimum rights:

a to be informed promptly, in alanguage which he understands and in detail,of the nature and cause of the accusationagainst him;

b to have adequate time and facilitiesfor the preparation of his defence;

c to defend himself in person orthrough legal assistance of his own choosingor, if he has not sufficient means to pay forlegal assistance, to be given it free when theinterests of justice so require;

d to examine or have examinedwitnesses against him and to obtain theattendance and examination of witnesses onhis behalf under the same conditions aswitnesses against him;

e to have the free assistance of aninterpreter if he cannot understand or speakthe language used in court.

Article 8

Right to respect for private and family life

1. Everyone has the right to respect for hisprivate and family life, his home and hiscorrespondence.

2. There shall be no interference by a publicauthority with the exercise of this right exceptsuch as in accordance with the law and isnecessary in a democratic society in theinterests of national security, public safety orthe economic well-being of the country, for theprevention of disorder or crime, for theprotection of health or morals, or for theprotection of the rights and freedoms of others.

Article 14

Prohibition of discrimination

The enjoyment of the rights and freedoms setforth in this Convention shall be securedwithout discrimination on any ground such assex, race, colour, language, religion, political orother opinion, national or social origin,association with a national minority, property,birth or other status.

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55. Article 1 is not expressly incorporated into English lawby the Human Rights Act 1998. The relevant sectionsof that Act are the following:

1. The Convention Rights

(1) In this Act ‘the Convention rights’ meansthe rights and fundamental freedoms set out in–

(a) Articles 2 to 12 and 14 of theConvention

(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 theConvention. (2) Those Articles are to have effect for thepurposes of this Act subject to any designatedderogation or reservation (as to which seesections 14 and 15).

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2. Interpretation of Convention Rights

(1) A court or Tribunal determining a questionwhich has arisen in connection with aConvention right must take into account any -

(a)judgment, decision, declaration oradvisory opinion of the European Court ofHuman Rights,

(b)opinion of the Commission given in areport adopted under Article 31 of theConvention,

(c)decision of the Commission inconnection with Article 26 or 27(2) of theConvention, or

(d)decision of the Committee of Ministerstaken under Article 46 of the Convention,whenever made or given, so far as, in theopinion of the court or tribunal, it is relevant tothe proceedings in which that question hasarisen.

6. Acts of public authorities

(1) It is unlawful for a public authority to act ina way which is incompatible with a Conventionright.

7. Proceedings

(1) A person who claims that a public authorityhas acted (or proposed to act) in a way which ismade unlawful by section 6(1) may –

(a) bring proceedings against theauthority under this Act in the appropriatecourt or tribunal, or (b) rely on the Convention right or rightsconcerned in any legal proceedings, but only if he is (or would be) a victim of theunlawful act.

56. Section 65 of the Immigration and Asylum Act 1999gives a right of appeal to the Immigration AppellateAuthorities to a person who alleges that an authorityhas acted in breach of his human rights in taking anydecision under the Immigration Acts relating to thatperson’s entitlement to enter or remain in the UnitedKingdom. In this appeal it was not suggested that wehave no jurisdiction on the ground that the decisionagainst which the appellant appeals was not onerelating to his entitlement to remain. For the purposesof this determination we should state that we followthe reasoning of the Tribunal in Kehinde (01/TH/2668*)and that of Newman J in Kumarakuraparan [2002]EWHC 112 Admin, rather than that of Stanley BurntonJ in Kariharan (CO/1692/2001). Put briefly, the basis ofour view is that if a person has, as a result of the

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Human Rights Act, a right not to be removed from theUnited Kingdom, then a decision that will result in hisremoval is a decision relating to his entitlement toremain. (All the decisions mentioned in this paragraphpostdate the hearing of this appeal.)

b. Meaning of ‘Convention right’ and ‘act of a publicauthority’

57. One primary question is whether the terms of section6(1) of the 1998 Act give greater protection in animmigration case than the mere enactment of theConvention would have done. The Convention is atreaty between States. An individual may have aclaim against any of those States for breach of therights that the State has contracted to afford him. Aswill be seen in the course of this determination,however, his right to inhibit any of the signatory Statesfrom removing him to a non-signatory State, whichmay not be so anxious in the protection of humanrights, is different. Mr Lewis argues that deciding toremove someone to a place where they are at risk ofbreach of a right protected by the Convention is an act‘incompatible with a Convention right’ and is thereforeprohibited by section 6(1).

58. This is, in essence, the question of the ‘extra-territorial effect’ of the Convention. This was a matterdealt with in some detail by the Tribunal in Kacaj(01/TH/0634). As we pointed out there (in paragraphs22-26), the term is not really apt, because what is inissue is indeed (as Mr Lewis argues) the act of thesignatory State in deciding to expel the individual.Depending on the circumstances of the case, agovernmental act may be prohibited by theConvention not because it directly breaches theindividual’s human rights but because it puts him in asituation where others breach his human rights. Wesaid this about Article 4:

‘In the context of this case, the adjudicator wasin error in concluding that Article 4 could notbe relied on because it did not, as he put it,have extra-territorial effect. That definition ismisleading since there is no question of extra-territorial effect in the true sense since thebreach, if any, will have occurred within thejurisdiction by the decision to remove whichwill have the effect of exposing the individualto whatever violation of human rights is inissue. We have used the word [extra-territorial] as a convenient label for the

29

argument but, for the reasons given, we rejectthe argument.’

59. That conclusion was reached without reference tosection 6(1), but it shows why that section takes theform it does. The breach of the Convention, if there issuch a breach, takes place within the signatory Stateby the decision the effect of which is to expose theindividual to treatment that is prohibited. To thisextent we are with Mr Lewis. He invited us to followKacaj, which we should do in any event.

60. But Mr Lewis wants to go further. He says that theeffect of section 6(1) is stronger still, in that itprohibits the exposure of the individual to anytreatment that would be prohibited if it took place inthe United Kingdom. It is difficult to deal coherentlywith this argument as it ignores the development ofthe interpretation of the Convention and therequirement (in section 2(1) of the Act) to take suchdevelopment into account. The rights set out in theArticles of the Convention are, with few exceptions,not absolute; and the Articles of the Convention,although appended to a statute, are not amenable tointerpretation in the same way as an English statute.Their meaning has been hammered out in litigationlargely over the last twenty-five years. If a youngenquirer were to ask an old master ‘What is themeaning of Article such-and-such? What rightsprecisely are protected?’, he would not be told ‘You goaway and read the Article, and then you will know asmuch about it as I do’, but ‘It all depends on thecircumstances. Bring your problem to me and we willwork together through the cases.’.

61. It is for this reason that it would in our view be wrongto give section 6(1) a fuller meaning than that thescheduled Articles are in force as part of the law ofEngland. Section 2 makes it clear that the content ofany ‘Convention right’ has to be established afterconsideration of the jurisprudence. That jurisprudenceshows, as we shall see, that the rights protected bysome of the Articles differ according to thecircumstances of the case. Nothing, save for Article 3,to which we shall shortly pass, is absolute.

62. It should, however, be borne in mind that in a humanrights appeal it is the act of the public authority that ischallenged. In the present case, as usually in SriLankan appeals, the Respondent proposes to removethe Appellant to Sri Lanka. That means in practical

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terms that he will fly by scheduled airline to Colomboairport. He may be expected to go from there toColombo itself, where there is a large minority Tamilpopulation. The authority’s decision encompasses nomore. If the Appellant goes from there to a placewhere he is on any account at greater risk, the risk isnot attributable to the act of the public authority.

c. Article 3

(i) Law

63. It is now well appreciated that Article 3 amounts to anabsolute prohibition on the ill-treatment specified in it.The Article admits of no derogation, justification ormodification; and it prohibits a signatory State fromexpelling a person to a place where there is a real riskthat he will suffer such ill-treatment.

64. In order for there to be a breach of Article 3, it is clearthat the ill-treatment must reach a sufficient level ofseverity. Miss Giovanetti referred us to a recentdecision of the European Court of Human Rights inKudla v Poland (application 30210/96; judgment 26October 2000) as an illustration of the rule. Atparagraph 91 of that judgment, we find this:

‘However, ill-treatment must attain aminimum level of severity if it is to fall withinthe scope of Article 3. The assessment of thisminimum is, in the nature of things, relative; itdepends on all the circumstances of the case,such as the nature and context of thetreatment, the manner and method of itsexecution, its duration, its physical or mentaleffects and, in some cases, the sex, age andstate 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. Thewording in Ireland v UK (1978) 2 EHRR 25 atparagraph 162 is almost identical.

65. In expulsion cases, the harm that is the subject of theclaim has not yet been suffered. The issue istherefore not confined to the evaluation of the harm:there is another variable, which is whether theclaimant is at risk of suffering that harm. Not allprospective ill-treatment, and not all claims of aprospective risk, are enough to engage this Article ofthe Convention. The individual claimant or Appellantneeds to establish that he is at real risk of suffering

31

proscribed treatment. In Bensaid v UK (application44599/98; judgment 6 February 2001) the Court wasfaced with clear facts relating to the claimant’s mentalhealth, his prognosis, the availability of medicaltreatment both in the United Kingdom and in Algeria,his country of nationality, the difficulty of travelling inAlgeria, the cost of medicines, the reaction of hisfamily to his illness, and so on. Despite the clarity ofthe factors, the Court (at paragraphs 39-41 and 48-49of the judgment) regarded the risk of them combiningto cause the claimant to suffer treatment contrary toArticle 3 (or Article 8) on his removal as ‘largelyspeculative’ and declined to find that a real risk wasestablished.

66. The task, therefore, is to assess the risk of harm byreference at the same time to the seriousness of theprospective harm and the likelihood of its beinginflicted on the claimant. It was no doubt thedifficulties faced by a claimant in establishing thedouble contingency that caused the Court in Bensaidto refer (at paragraph 40; emphasis added) to ‘thehigh threshold set by Article 3, particularly where thecase does not concern the direct responsibility of theContracting State for the infliction of harm’.

(ii) Evidence

67. We turn then to the country evidence. Mr Lewis hasput before us the 2001 reports of the US Departmentof State and Human Rights Watch, the entry for SriLanka in the 2000 Amnesty International Yearbook, areport ‘The Situation of Tamils in Colombo’, producedin November 1999 by a Dutch body called Sri LankaWerkgroep, a report ‘Tamils in Sri Lanka’ produced inSeptember 1999 by the Dutch Foreign Ministry at TheHague; and a book ‘Caught in the Middle: a Study ofTamil Torture Survivors Coming to the UK from SriLanka’, written by Dr Michael Peel and Dr MarySalinsky, both of the Medical Foundation for the Careof Victims of Torture, and issued by that body in June2000. Miss Giovanetti has put before us the ‘Sri LankaAssessment’ of the Home Office’s Country Informationand Policy Unit, dated April 2001, and correspondencerelating to the documentation of those returned fromEuropean countries to Sri Lanka. We also have thebenefit of a ‘Synopsis’ and a ‘Digest’ prepared onbehalf of the Appellant.

68. Miss Giovanetti urges caution in dealing with some of

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this material. She is right to do so. As she points out,much of what is sometimes called ‘objective evidence’is unsourced. Much of it derives from anecdotalevidence of asylum claimants, without any properenquiry into whether what they say is the truth. MissGiovanetti also asks us to note the geographicalcontext of what is said in the various reports.

69. The Medical Foundation report, ‘Caught in the Middle’,is in our view of extremely limited value as evidence –although it is the source of over half those entries inMr Lewis’ ‘Synopsis’ under the heading ‘The use oftorture is widespread’. We must explain the reasonsfor our assessment of this report, because we shouldnot want to be seen as expressing anything other thanadmiration for the work the Foundation does with andfor its patients.

70. The report is based largely on the views Dr Peel hasreached as a result of his medical examination ofthose who claim to have been ill-treated in Sri Lanka.If he regards the injuries they display (or do notdisplay – see below) as consistent with the story theyhave told, he writes a report indicating that that is thecase. The whole of the story told by such a person isthen accepted, for the purposes of the publishedreport, as true, regardless of whether it has anymedical content, and regardless of whether theremight be any alternative explanation for the medicalsigns (or lack of them). So, for example, the reportstates confidently that ‘many asylum seekers werebadly advised by their agents’ (page 74). This is aconclusion that, so far as we are aware, the authors’medical expertise does not entitle them to draw. Whatthey mean is ‘many asylum seekers say that theywere badly advised by their agents, and we do notchallenge that’.

71. As members of the Medical Foundation for the Care ofVictims of Torture the authors are no doubt perfectlywithin their rights not to challenge a patient’s story.As lawyers we should not want to intrude into theirmedical expertise, but we should not be surprised tolearn that the medical care of any individual in thesituation in which he finds himself is not likely in manycases to begin by accusing him of lying. But it is notthe role of the doctor to provide (either generally or inparticular cases) an assessment of a claimant’struthfulness. That, if the story is challenged, is for theappropriate court. (And, of course, it goes without

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saying that, despite the title of the body, it does notfollow that the Foundation’s patients have all beensubject to what a lawyer would class as ‘torture’.)

72. An attitude of broad acceptance to evidence isappropriate for a doctor and carer but exactly howmisleading it can be in a forensic context is wellillustrated by a feature of the present appeal. Onpage 30 of the Report, Dr Peel writes:

‘I would not necessarily expect to see scarringon someone who had been detained for a fewdays and beaten in many of the ways that arecommon in Sri Lanka, such as punching,kicking, and being beaten with S-LON pipes,but not assaulted in other ways. The absenceof physical signs, however, does not mean thatthe person has not been tortured.’

73. The whole of that passage, with the exception of oneword, is a valuable piece of medical advice. Justbecause a person has no scars, it does not mean thathe has not, in the past, suffered beatings. As amedical judgement, the second sentence is little morethan a repetition of the material in the first. But theaddition of the word ‘however’ sets the secondsentence against the first, and makes it look asthough additional information is being given – thatpeople without scars have (or may have) beentortured. It is in this sense that the passage has beenunderstood by those who prepared the ‘Synopsis’ onthe Appellant’s behalf. Under the heading ‘No Trace’the passage is part of the assemblage of materialdesigned to establish that there is widespread torturein Sri Lanka. The absence of scars does not mean anabsence of torture; but the absence of scars is noevidence at all of the presence of torture.

74. We must also add that this Report is structured as areply to (or rebuttal of) the Home Office’s reasons forrefusing many Tamil asylum claims. Nobody couldregard the whole report as anything other thanpartisan. It is written against the Respondent, bythose who have taken the side of Appellants. In itsproper place, it is none the worse for that. But itshould not under any circumstances be regarded as‘objective evidence’.

75. We note that the CIPU Bulletin is also a partisandocument, in that it comes from an organ of theRespondent. It is, however, little more than a

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compendium of material from other publishedsources, which are listed in the bibliography. Theyrange from reports of international organs, throughvarious governmental bodies in Britain and abroad, tonews reports around the world. The Bulletin isarranged in such a way that the source of eachstatement in it can readily be traced.

76. We appear to have virtually no information on thenature of the Sri Lanka Werkgroep. It evidently takesa position opposed to the Dutch government on thetreatment of Tamil asylum-seekers. The DutchForeign Ministry report appears to make no mentionof the Sri Lanka Werkgroep in either its text or its listof sources, although the Werkgroep had producedearlier publications (see footnote 21 in the Werkgroepreport). Whether that is out of mere antipathy, orbecause the Dutch government has good reasons forignoring the Sri Lanka Werkgroep, or for some otherreason, we do not know.

77. What is important, however, is that the report of theSri Lanka Werkgroep is very narrowly based.Although there are occasional references (see the firstparagraph of the report and footnote 33) to a widerrange of information, this report is ‘based on nineinterviews with deported Tamil asylum seekers in SriLanka, seven of whom were deported by theNetherlands’. We are told nothing more about thesenine prime sources of information, but no doubt manyof them had their credibility assessed eitheradministratively or judicially (or both) and were foundwanting: their claims were unsuccessful and theywere returned to Sri Lanka. In the circumstances it isdifficult to attribute very much evidential value to theaccounts given by the individuals interviewed.

(iii) Conclusions

78. The Appellant claims that he faces a risk of arrest,either at the airport because of the documents onwhich he will be travelling, or at a checkpoint on theway to or in Colombo, or in a round-up in Colombo.He claims that if arrested he faces a serious risk ofbeing subjected to torture or other serious ill-treatment: and that his return to Sri Lanka thereforeexposes him to real risk of treatment contrary toArticle 3.

79. Mr Lewis did not press the claim relating to the

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Appellant’s putative documentation. He was right notto do so. The evidence that returnees are subject toill-treatment at the airport for this reason is, to say theleast, frail. But he insisted that the general risk for aTamil is of being detained on one pretext or anotherand, during detention, suffering to severe ill-treatment.

80. The evidence does not establish that there iswidespread torture in Colombo. Miss Giovanettipoints to the Dutch Foreign Ministry’s report,indicating that in the year 1998 Amnesty Internationalwere aware of four case of torture in Colombo, andthe Sri Lanka Monitor reported only one other. Noproperly quantified reliable evidence suggests thecontrary. A Tamil is not at real risk of torture inColombo.

81. Following round-ups, the evidence is that the vastmajority of those detained are released within a shortperiod of time (up to 72 hours). The aim of the round-ups is the detection of LTTE activists: and there is littledoubt that where there is reason to suspect that adetainee is such a person, detention may beprolonged for the purpose of enquiries. Risk factorsmentioned in the Dutch Foreign Ministry report arenot being in possession of an identity card, not beingregistered with the police, recent arrival from thenorth or east, and possession of scars leading tosuspicion of LTTE membership. The Appellant (incommon with other Tamil returnees) will be able tocollect an Emergency Certificate (equivalent to anidentity card) on the first morning after his arrival inColombo; he will be able to register; he will not havearrived recently from the north or east, and has noscars likely to raise suspicions of his having been anLTTE member. If he is rounded up, there is no reasonto suppose that any detention will be other than brief.There is nothing is his case to cause suspicion.

82. If he were to be detained for a lengthier period, therisk of ill-treatment (short of torture) would be higher.But that risk is largely speculative (to use the wordingof Bensaid v UK), because he may never be detainedat all and (if detained) is most likely not to bedetained for long. The Appellant fails to establishthat, generally or universally speaking, a returnedTamil asylum-seeker is at real risk of being ill-treatedin a way the breaches Article 3.

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83. We do not ignore the fact that Mr Lewis argued alsothat the Appellant’s detention would itself breach theConvention and that he would be deprived of a fairtrial. These are claims of breaches of Articles 5 and 6of the Convention and are treated in section ‘e’ below.Nor do we ignore the claim that generaliseddiscrimination against Tamils in Sri Lanka amounts todegrading treatment. We have found it moreconvenient to treat this issue in our discussion ofArticle 14, at paragraphs 117-124 below.

d. Article 8

84. The Appellant also claims that his return to Sri Lankawould interfere with his ‘physical and moral integrity’so as to be a breach of Article 8. In his submissions,Mr Lewis acknowledged that this claim depended onthe same factual matrix as the claim under Article 3.We have found that the Appellant has not establisheda real risk of being exposed to treatment breachingArticle 3. The risks are speculative. For the samereasons we find that the Appellant fails to establish areal risk of interference with his physical or moralintegrity.

85. In any event, a breach of Article 8.1 may be justified, ina removal case, within the proportionality principles ofArticle 8.2, by the need to maintain immigrationcontrol. It is for the Respondent to establishproportionality: but whereas the general need tomaintain immigration control is a matter of which wetake judicial notice, as well as being the reason behindnumerous decisions of national courts and theEuropean Court of Human Rights, there is no evidenceon this issue from the Appellant’s side. In thesecircumstance we are entitled to decide, as we do, thatany infringement of the rights set out in Article 8.1would not be disproportionate to that need.

86. For the avoidance of doubt we should add that it hasnot been seriously suggested that the Appellant’sremoval from the United Kingdom to his country ofnationality would interfere with his private or familylife here: there would be no evidential basis for anyfinding that it would.

87. For the foregoing reasons we find no breach of Article8.

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e. Articles 5 and 6

(i) General

88. We can take Articles 5 and 6 together, for thearguments in respect of them are sufficiently similar.It is common ground that Articles 5 and 6 are not‘absolute’ in the sense that Article 3 is. They are,however, not ‘non-absolute’ in precisely the same wayas Articles 8 – 11.

89. Each of Articles 8-11 incorporates a general provisionallowing interference or limitation of the rightprotected by the Article in question. As a result, abalancing exercise has to be undertaken when abreach of the Article is alleged; and in expulsion casesit may be, for example, that the need for firm and fairimmigration control will be found to justify aninterference with private or family life. (See R v SSHDex parte Mahmood [2001] 1 WLR 840, CA; Kacaj(01/TH/0634), paragraph 25

90. There is no such general provision in Articles 5 and 6.Article 5 lays down circumstances in which deprival ofliberty is allowed but with that reservation the twoArticles are both expressed in absolute terms.Nevertheless, it has been the consistent approach ofthe Court that the rights guaranteed by Articles 5 and6 are not absolute rights and that what appears to bea breach may be found to be justifiable in the light ofall the circumstances. This is quite different from theequally consistent approach to Article 3: if treatmentcomes within Article 3 at all, it cannot be justified.

91. Miss Giovanetti submits that Articles 5 and 6 shouldnot be, and indeed have not been, interpreted in sucha way as to prohibit the return or expulsion ofindividuals to non-signatory countries which do notobserve the same standards in relation to liberty and afair trial as are guaranteed by Articles 5 and 6. In herwritten skeleton she states that those acting for theRespondent have not found a single instance wherethe Court or the Commission have held that expulsionwould be unlawful because it would expose theApplicant to treatment contravening Articles 5 and 6.Nothing we heard from Mr Lewis causes us to thinkthat there was any instance that was not found.

92. Miss Giovanetti also points out that the obligation toprotect persons from treatment contrary to the

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Convention is rather limited (except under Article 3)when the treatment is by third parties. Even the rightto life is not absolute in this sense, even on theterritory of a country that is a party to the Convention.In Osman v UK (2000) 29 EHRR 245, the Court noted,at paragraph 115, that Article 2 enjoins the State notonly to refrain from the intentional and unlawful takingof life, but also to take appropriate steps to safeguardthe life of those within its jurisdiction. It went on (atparagraph 116) to express its view that

‘bearing in mind the difficulties involved inpolicing modern societies, the unpredictabilityof human conduct and the operational choiceswhich must be made in terms of priorities andresources, such an obligation must beinterpreted in a way which does not impose animpossible or disproportionate burden on theauthorities.’

93. In relation to Article 6, Miss Giovanetti cited Soering vUK (1989) 11 EHRR 439 and Drozd and Janousek vFrance and Spain (1992) 14 EHRR 745. In Soering, theUK proposed to extradite the Applicant to the USA,which is of course, not a party to the Convention. TheCourt unanimously held that the Applicant'scomplaints that he would not have legal aid for histrial in the USA did not give rise to an issue underArticle 6(3)(c). It said, at paragraph 113:

‘The right to a fair trial in criminal proceedings,as embodied in Article 6, holds a prominentplace in a democratic society. The Court doesnot exclude that an issue might exceptionallybe raised under Article 6 by an extraditiondecision in circumstances where the fugitivehas suffered or risks suffering a flagrant denialof a fair trial in the requesting country.However, the facts of the present case do notdisclose such a risk.’

94. The legal background of Drozd is somewhat moreinvolved. The Applicants, citizens of Spain andCzechoslovakia respectively, were convicted of armedrobbery and sentenced to imprisonment by theTribunal de Corts in the Principality of Andorra.Following normal procedure there the court wascomposed of French and Spanish judges, and thesentence was to be served in a French prison. (Theconstitutional and legal system in Andorra isconveniently set out in paragraphs 32 – 76 of thereport). Andorra is not a party to the Convention; theApplicants claimed against France and Spain that the

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trial in which their judges took part was in breach ofArticle 6, and against France that their imprisonmentwas in breach of Article 5.

95. The Court found that not only is Andorra not a party tothe Convention in its own right: it is not subject to theConvention as a result of its relationship with eitherFrance or Spain. It also held that in exercising officeas judges in Andorra, the French and Spanish judgeswere not acting as French or Spanish officials, but asjudges of the Principality. Their acts as such judgeswere therefore not attributable to France or Spain. Theallegation of breaches of Article 6 was therefore notwithin the jurisdiction of the Court.

96. Having found that the alleged breach of Article 6 wasnot within its jurisdiction, the Court then proceeded toconsider the claim that the Applicants’ detention inFrance was a breach (by France) of their rights underArticle 5. The question was twofold. First, was there asufficient legal basis, in French law, for the detention?Secondly, should the French authorities haveexercised control over the judgment pronounced inAndorra?

97. The first question was answered by reference tosimilar principles to those which had motivated thedecision on Article 6. There was a clear basis, valid incustomary law, for the Applicants’ detention in France(or, indeed, Spain) following conviction by an Andorrancourt. On the second question, whether France shouldhave exercised any control over the Tribunal de Corts,so as to ensure that a sentence of imprisonment wasimposed only in accordance with the requirements ofArticle 6, the Court’s conclusion, in paragraph 110,was as follows:

‘The Court, like the Commission, considers thatin this case the Tribunal de Corts, whichpronounced the conviction of Mr Drozd and MrJanousek, is the ‘competent court’ referred to inArticle 5(1)(a). As the Convention does notrequire the Contracting Parties to impose itsstandards on third States or territories, Francewas not obliged to verify whether theproceedings which resulted in the convictionwere compatible with all the requirements ofArticle 6 of the Convention. To require such areview of the manner in which a court notbound by the Convention had applied theprinciples enshrined in Article 6 would alsothwart the current trend towards strengtheninginternational cooperation in the administration

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of justice, a trend which is in principle in theinterest of the persons concerned. TheContracting States are, however, obliged torefuse their cooperation if it emerges that theconviction is the result of a flagrant denial ofjustice.

The Court takes note of the declaration madeby the French Government to the effect that itcould and in fact would refuse its customarycooperation if it was a question of enforcing anAndorran judgment which was manifestlycontrary to the provisions of Article 6 or theprinciples embodied therein. It findsconfirmation of this assurance in the decisionsof some French courts: certain indictmentsdivisions refuse to allow extradition of a personwho has been convicted in his absence in acourt where it is not possible for him to beretried on surrendering to justice, and theConseil d’Etat has declared the extradition ofpersons liable to the death penalty on theterritory of the requesting State to beincompatible with French public policy.

In the Court’s opinion, it has not been shownthat in the circumstances of the case, Francewas required to refuse its cooperation inenforcing the sentences.’

98. In his written skeleton argument, Mr Lewis did notaddress the question of the application of Articles 5and 6 to acts having effect outside the territory ofcontracting parties. Instead, he simply argued, on thebasis of the evidence, that the treatment to which theappellant would be subject on his return would breachthose Articles as they have been interpreted andapplied by the Court in assessing acts having an effectwithin the territory of the contracting parties. In hisoral submissions, he argued that the authorities towhich Miss Giovanetti had referred tended towards theopposite of the conclusion she had urged on us.

99. As Mr Lewis observed, in Drozd, the Court prefaced itsdiscussion of the responsibility of the judges as Frenchor Spanish authorities with the following (paragraphs89 – 91)

‘89 … In short, the objection of lack ofjurisdiction ratione loci [i.e. because the eventstook place on territory not part of a signatoryState] is well-founded.

90. This finding does not absolve theCourt from examining whether the Applicants

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came under the ‘jurisdiction’ of France or Spainwithin the meaning of Article 1 of theConvention because of their conviction by anAndorran court.

91. The term ‘jurisdiction’ is not limited to thenational territory of the High ContractingParties; their responsibility can to be involvedbecause of acts of their authorities producingeffects outside their own territory.’

100. Mr Lewis relies on paragraph 91 in particular tosupport his submission that the Court is – and hencenational courts are – concerned with the effect,outside the territory of contracting parties, of adecision made by the authorities in a State party tothe Convention. But that proposition is not in dispute.It is clearly of concern under Article 3. Mr Lewisreferred generally to Article 8, but that may not bequite accurate. In many expulsion cases under Article8, the complaint is that the expulsion will interferewith the claimant’s private or family life as it is atpresent enjoyed in the expelling country. In suchcases there is no need to see what are the effectsoutside the territory of that country. It is clear,however, that such effects may also fall to be takeninto account: see, for example, D v UK (1997) 24EHRR 423. What paragraph 91 of Drozd does notestablish is that the Convention is engaged in everycase where the acts of authorities of contractingparties may produce an effect which, if it took placewithin the territory of a contracting party, would bewithin the jurisdiction of the court.

101. On Soering, Mr Lewis submitted that the Court’s viewwas that Article 5 was analogous to Article 3 inextradition cases. That submission was based only onparagraph 85 of the judgment, which does not supportit. Article 5 is mentioned in the paragraph only in orderto show (by the presence of the word ‘extradition’ inArticle 5(i)(f)) that the Convention imposes no universalprohibition on extradition. It is true that it repeats theproposition that expulsion may, “assuming that theconsequences are not too remote”, engage theConvention obligations of a contracting State. But,although the footnote reference is to Abdulaziz andothers v UK (1985) 7 EHRR 471 – an Article 8 case – thediscussion is confined to Article 3.

102. The Court’s decision in Drozd was by a bare majority.The views of the dissenting judges are of the very

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greatest of interest in the present context. Six of them(pages 796 and 800 of the report) took the view thatFrance had a liability under Article 6 of the Conventionbecause it was in France that the imprisonment wastaking place.

‘As the case concerns a fact (a long term ofimprisonment) which must take place in France,the Convention is certainly applicable. And itwould be contrary to the Convention for acountry which was bound by it to agree todeprive a person of his liberty where he hadbeen convicted in another country underconditions which did not appear to becompatible with the Convention.’

103. Those judges considered that the finding of a violationof Article 5 would “merely” entail the applicant's returnto Andorra. It would then be the duty of the French andSpanish authorities to apply diplomatic pressure onAndorra, but no more.

104. The other five judges, in two separate opinions (pages794 and 800 of the report) took the view that as thesentence was served in France, France had a duty toensure that the conviction was compatible with theminimum standards required by the Convention tojustify deprival of liberty.

105. It is to be noted that all the judges, whether agreeing ordisagreeing on the result, paid great attention to thefact that Andorra is not a party to the Convention.Nobody thought that it was possible to require a non-party country to conform to the obligations imposed bythe Convention. And, despite the criticisms of theAndorran system, the majority of those judges whowould have decided that the Court had jurisdictionwould have confined their judgment to finding thatimprisonment in France was unlawful. Theconsequence would, as they acknowledge, be thereturn of the applicants to the very country whosecriminal justice system is said not to comply with therequirements of Articles 5 and 6.

106. Miss Giovanetti submitted that, if the Convention wereinterpreted so as to prohibit removal to countries thatdo not observe the same procedural safeguards as inEurope, it would place a disproportionate burden on thesignatory State. It would also constitute anunwarranted fetter on the right of signatory States tocontrol immigration. We agree that it would impose a

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burden and be a fetter. We agree also with herdistinction between Article 3, which relates to the mostfundamental of rights, and Articles 5 and 6, whichprovide procedural and substantive rights. The factthat there would be a burden on signatory States wouldnot, however, of itself show that that was not the effectof the Convention: and, if it were, it would not followthat the burden was disproportionate or unwarranted.

107. We are, however, perfectly satisfied that it is not theintention of the Convention that any person who canmake his way from another State, where the rights setout in the Convention are not all protected, to asignatory State, can resist return on the basis that somehuman right of his may be infringed in his homecountry. There are three reasons. First, that wouldplace a burden on signatory States so unacceptablethat no such State could be thought to have undertakenit. Secondly, the European Convention on HumanRights, as interpreted in Strasbourg, embodies merelyone approach to the delineation and protection ofhuman rights. Other regional treaties are not identical;nor is the approach of the United Nations Human RightsCommission. Europe does not have a monopoly in theidentification, hierarchy and enforcement of humanrights.

108. Thirdly, such an approach entirely ignores the dynamicof the enforcement of human rights in Europe and theprocess by which the law of human rights develops inEurope. If Sri Lanka were a party to the Convention, anindividual might bring proceedings against her in theEuropean Court of Justice. In reply, Sri Lanka mightbring evidence to show that the matters described bythe Appellant were not the whole story; and she mightraise arguments directed to show that her position, andher practice, was not such as to give rise to breaches ofthe Convention. She might even be able to show thatshe had validly (under Article 15 of the Convention)derogated from the Article alleged to have beenbreached. The importance of consideration of thesituation in the country in question is amplydemonstrated by the variety of results in claims underArticle 6, reflecting the Court’s recognition of a widemargin of appreciation.

109. But Sri Lanka is not a party to the Convention.Whatever the circumstances in that country, Sri Lankacannot derogate from the European Convention onHuman Rights. She has no locus standi in Strasbourg.

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Whatever is said about her, she has no opportunity torebut or explain. Sri Lanka is not and could not be aparty to these proceedings, and no party before us haseither the authority or the duty to put before us sucharguments and evidence as she might have put inresponse to the Appellant’s claims. In thesecircumstances, we cannot judge the Appellant’ssituation on return there by the standards that wouldapply in a signatory State, because a signatory Statewould not be obliged to remain silent in the face of theclaim. We could judge the Appellant’s situation only byreference to some idealised version of the standards ofthe Convention – which would, of necessity, be astandard higher than that imposed by the Conventionand the Court on any actual signatory State. Thisconsideration alone is enough to show that theConvention cannot, in general operate so as to preventremoval to a non-signatory country whose human rightsstandards are said in some respects to be less thanwould be required in a signatory State.

110. It is for these reasons, we apprehend, that the Courttakes the position exemplified in Drozd. It is clear thatthe Court does not attempt to impose the duties of theConvention on States that are not party to it. It is alsoclear that the fact that a person may be treated in amanner that would, in a signatory State, be a breach ofthe Convention does not of itself render his expulsion toanother country unlawful, unless either the breach willbe of Article 3, or the consequences of return will be soextreme a breach of another Article that the returningState, as one of its obligations under the Convention, isobliged to have regard to them. Following thejurisprudence on Articles 5 and 6, this consequence willonly arise if the situation in the receiving country is thatthere will be a flagrant denial or gross violation of therights secured by the Convention. For this reason wehave not needed to consider in this determination theprecise implications of Articles 5 and 6 within signatoryStates.

111. The reason why flagrant denial or gross violation is tobe taken into account is that it is only in such a case –where the right will be completely denied or nullified inthe destination country – that it can be said thatremoval will breach the treaty obligations of thesignatory State however those obligations might beinterpreted or whatever might be said by or on behalfof the destination State.

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(ii) Application to this appeal

112. Mr Lewis took us through a great deal of materialrelating to detention, imprisonment, charge and trial inSri Lanka. It does not, in our view show that there is inSri Lanka a flagrant denial or gross violation of therights secured in signatory States by Articles 5 and 6.On the contrary, there is a developed criminal justicesystem, and a National Human Rights Commission.Things may not always work as they ought to, but thereis no question of flagrant denial. It follows that theAppellant’s removal to Sri Lanka would not be a breachby the United Kingdom of his rights under Article 5 orArticle 6.

f. Article 14

(i) General

113. Article 14 is not free-standing. It prohibitsdiscrimination only in respect of the rights andfreedoms set forth in other Articles of the Convention.Mr Lewis pointed to the existence of discriminationagainst Tamils in Sri Lanka. He submitted that ingeneral racial discrimination might constitute an affrontto dignity and so a breach of Article 3, or aninterference with private life or ‘respect for physical andmoral integrity’ and so a breach of Article 8. He furtherargued that discrimination against Tamils in thecriminal justice system in Sri Lanka – whether indetention policy, in prison awaiting trial, or in the trialprocess itself – meant that the removal of a Tamil to SriLanka would be a breach (or potential breach) of Article5 or 6 taken with Article 14.

114. Miss Giovanetti said in her skeleton simply that therewas no breach of any of the other Articles relied on bythe Appellant and that she therefore had no need todeal with Article 14. In her oral submissions,recognising that there can be a breach of Article 14even when the conduct complained of would not ofitself amount to a breach of any other Article, she askedus nevertheless to find no breach of Article 14. Anydiscrimination did not come within the ambit of aprotected right, or was justifiable in the light of thesecurity situation in Sri Lanka.

115. We have not been shown any case in which Article 14has prevented expulsion to a non-signatory country onthe ground of discrimination in that country. There are

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cases in which Article 14 has been relied on inexpulsion cases, but the argument there was in thecontext of discrimination by the expelling, signatory,country. See Monstaquim v Belgium (1991) 13 EHRR802; C v Belgium (96/25). (The claim was not upheld ineither of those cases.)

116. Generalised discrimination is not enough to engageArticle 14; nor is discrimination in an area not within the‘ambit’ of another applicable Article. It is thereforenecessary to consider the effect of Article 14 inconjunction with the other Articles upon which theAppellant relies. We begin with Article 3.

(ii) With Article 3

117. As we said at the hearing, we have considerabledifficulty with the concept of a combination of Articles 3and 14, save in very exceptional cases. One exampleof such an exception is evidently the East African Asians cases, (1973) 3 EHRR 76. Here the Commission tookthe view that the removal of status on racial groundswas degrading treatment and a breach of Article 3.What was exceptional about that case was not, in ourview, the fact that the removal of status was contrary tolegitimate expectation or that the degrading treatmenthad a public element. It is that the removal of statuscould not conceivably be a breach of Article 3 exceptwhen accompanied by discrimination. It was thediscrimination that made the removal of statusdegrading.

118. This is important because the East African Asians caseswere rather early and it is only more recently that therights protected by Article 3 have been clearly andindisputably established as absolute. They are enjoyedby all individuals and breach of them cannot beexcused. Ill-treatment has to achieve a level of severitybefore it amounts to a breach of Article 3, however. If itis at that level, it ought to be prohibited, whoever thevictim is. We are unwilling to contemplate a situationwhere (in the case of a type of ill-treatment that isclearly within the ambit of Article 3 even ifdiscrimination is not alleged) the same level of ill-treatment is considered a breach of Article 3 taken withArticle 14 if administered in a discriminatory manner,but not a breach of Article 3 if not so administered.

119. We hesitate to give examples, for fear of influencingfuture cases. Suppose, however, that there has been

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some sort of anti-government demonstration, which hasbeen violently broken up by government officials.Suppose further that it is established that there wasgeneralised ill-treatment of the demonstrators, but that,on the whole, members of race A were treated worsethan members of race B and that the reason for that isthat in the country’s society as a whole there isdiscrimination against race A. Suppose further that amember of race A and a member of race B have beenill-treated in precisely the same way, at a level which(though severe) is not sufficient to amount to a breachof Article 3 on its own. Is the member of race A entitledto claim that there was a breach of the Convention inhis case because the ill-treatment had a discriminatorymotive, while the member of race B cannot establish hisclaim? Surely not. Such a conclusion would makesevere inroads into the absoluteness of the protectionoffered by Article 3; and indeed would diminish theprotection offered by Article 3 to members of race B.Further, it would make Article 3 almost impossible toapply, as there could be no consensus as to the level ofill-treatment that made it applicable.

120. In this example we have had the advantage of positingaffairs in the past and a situation of identical ill-treatment. In an expulsion case the relevant factorscannot be so clear-cut. It is necessary to look to thefuture, and to the risks. Generalised discrimination maymake it easier for a member of race A to establish thathe is at risk of treatment at the higher level of severity:but in that case, his claim is made out because heshows that he is at risk of ill-treatment contrary toArticle 3. Article 14 has nothing to do with it: it is theevidence of discrimination, not the allegation thatdiscrimination breaches the Convention, that enableshim to make his case. If, on the other hand, (even withthe evidence of discrimination) he is unable to showthat he is at risk of treatment that, if administered to amember of the other race, would breach Article 3, thenArticle 14 cannot lower the threshold for him.

121. Our conclusion therefore is that Article 14 has little toadd to Article 3 in the absolute sense that the latter hasbeen interpreted. The role of Article 14 in conjunctionwith Article 3 must be limited to showing the degradingnature of treatment based on race but otherwiseentirely outside the ambit of Article 3.

122. The question then is whether the general discriminationagainst Tamils in Sri Lanka amounts to degrading

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treatment within the meaning of Article 3. We acceptthat round-ups are likely to be of Tamils only; but anyparticular round-up may be justified by the securitysituation and the fact that it is Tamils, not Sinhalese,who have been waging a violent campaign against thegovernment. Requirements for registration can beviewed similarly; but it is to be noted that permanentresidents of Colombo, of whatever race, do not need toregister (see the regulation appended to the DutchForeign Ministry report). It is difficult to see that theevidence of round-ups or registration shows any clearunjustifiable differentiation or discrimination againstTamils.

123. Conditions in prisons are very poor: but they are poorfor all prisoners. The language of the state is not Tamil:but being spoken to in a language that is not one’s own(but is the language of the majority in the country)could hardly be described as degrading. There may be,and no doubt are, individual instances of degradingtreatment that are entirely unjustifiable. But that is notthe point, unless the Appellant were able to show a realrisk of being subject, on racial grounds, to one of thoseinstances, which he cannot. The evidence before usrelates mostly to Tamils and does not purport topresent a balanced picture from which one couldascertain whether ill-treatment is administered in adiscriminatory fashion. But there is some evidence ofill-treatment or degrading treatment of Sinhala.

124. The general situation is that Tamils are subject todifficulties not shared by other races in Sri Lanka, butwe do not find that the treatment of Tamils is such as toamount generally to degrading treatment of them. TheAppellant has not established that on return he is atreal risk of treatment amounting to a breach of Article 3taken with Article 14.

(iii) With Article 8

125. So far as concerns Article 8 taken with Article 14, theposition is, as we have indicated above, that Mr Lewisrelied on the same facts, and essentially the samearguments, to support his claim that the Appellant’sremoval would breach Article 8 by interfering with his‘physical and moral integrity’, as he had relied on insupport of the Article 3 claim. Article 8, however, is notabsolute. There is, in principle, no reason whytreatment of a kind which, without discrimination, wouldnot amount to an interference with private or family

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life, could not be found to do so if motivated bydiscrimination.

126. On the other hand, Article 8 is also not unqualified. Aswe noted at paragraph 85, the claim under Article 8 issubject to the need to maintain immigration control. Itis not said that that requirement is being applied in adiscriminatory fashion, and, so far as concerns theAppellant’s prospective position in Sri Lanka, we takethe view that any interference with his private or familylife resulting from the Respondent’s decision isproportionate, and so not a breach of Article 8 evenwhen that Article is taken with Article 14.

(iv) With Articles 5 and/or 6

127. We have also concluded that the return of the Appellant(or Tamils generally) to Sri Lanka would not be a breachby the United Kingdom of Article 5 taken with Article 14or Article 6 taken with Article 14. We reach this resultby either of two routes.

128. First, we note that Article 14 is essentially procedural.Its language mirrors that of Article 1. It regulates theway in which rights set forth in the Convention are to besecured by signatory States: that is, withoutdiscrimination. As we have shown, in relation toexpulsion to the territory of a non-signatory State, theright secured by the Convention is merely not to beexpelled to a state where there is a flagrant denial orgross violation of the principles of Article 5 or Article 6.There is no suggestion that the United Kingdom appliesimproper discrimination in the application of itsexpulsion policy. Matters of detention and trialprocedure outside signatory States are not within theambit of the Convention at all except in cases of grossviolation or flagrant denial of the rights. Thusdiscrimination in Sri Lanka in matters relating todetention and trial, if it were established, would notaffect the securing by the United Kingdom of the rightsset forth in the Convention. The discrimination allegedis not discrimination against which the Conventionprotects the Appellant.

129. The second route is quite different in principle but itleads to the same result on the evidence. It is to takeArticle 14 with Articles 5 and 6 in assessing the questionwhether the effect of the claimed discrimination is toproduce a flagrant denial of the rights protected byArticles 5 or 6 in the case of the group against which

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the discrimination operates. That effect is, however,not established on the evidence. Tamils suffer, as wehave said, some disadvantages. But thosedisadvantages are not such as to enable one to say thatthere is in Sri Lanka a flagrant denial to Tamils of therights of liberty and fair trial.

g. Cumulation

130. Mr Lewis’ final argument was based on cumulation. Wehave considered the risks of ill-treatment cumulativelyin our treatment of Article 3. But Mr Lewis submittedthat a combination of factors, not breaching any singleArticle of the Convention, might add up as a whole to abreach of the Convention. He drew an analogy with theRefugee Convention: but the analogy is false. Underthe Refugee Convention there is one compositequestion relating to the risk of persecution; andpersecution is itself often established by the repetitionof events each of which would not individually amountto persecution. Neither under the European Conventionon Human Rights nor within the Human Rights Act 1998is there any conception of a single composite question.The rights are individual; they (in the plural) aresecured by the Convention; and section 6(1) of the Actmakes unlawful an act inconsistent with a (singular)Convention right. There is no authority for Mr Lewis’claim that a series of failures to breach Conventionrights should be taken together as a breach of ‘therights secured by the Convention’. We reject it.

131. Even if we are wrong about that, we see no breach ofthe Convention in the Appellant’s removal to Sri Lanka,whether the Articles of the Convention are takentogether or separately. His appeal is dismissed.

C. M. G. OCKELTONDeputy President