R v. Secretary of State for the Home Department, Ex parte Sritharan and Another

Publisher	United Kingdom: High Court (England and Wales)
Author	High Court (Queen's Bench Division)
Publication Date	24 February 1992
Citation / Document Symbol	[1993] Imm AR 184
Cite as	R v. Secretary of State for the Home Department, Ex parte Sritharan and Another, [1993] Imm AR 184, United Kingdom: High Court (England and Wales), 24 February 1992, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b66b18.html [accessed 27 May 2023]
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R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex parte SRITHARAN and another

Queen's Bench Division, CO/2852/91

[1993] Imm AR 184

Hearing Date: 24 February 1992

24 February 1992

Index Terms:

Political asylum -- citizens of Sri Lanka -- applications made in Oman for visas for United Kingdom for political asylum -- refusal by Secretary of State -- applicants had no close links with United Kingdom -- whether Secretary of State had obligation to consider the applications on the merits -- whether in consequence of applicants being returned to Sri Lanka, Secretary of State had breached the Convention -- the ambit of article 33(1). United Nations Convention relating to the status of refugees 1951 (Protocol 1967) art 33(1).

Held:

The applicants for judicial review were citizens of Sri Lanka. They had intended to seek political asylum in the United Kingdom. They had flown to Oman but were unable there to board their flight to the United Kingdom because they were arrested for being in possession of forged documents. Accordingly while in Oman they applied for visas for the United Kingdom.

The Secretary of State refused to consider their applications on the merits: they had no links with the United Kingdom and in the absence of such links the Secretary of State considered he had no obligation to consider applications from those who had not arrived in the United Kingdom.

The applicants were returned to Sri Lanka by the authorities in Oman.

On application for judicial review it was argued by counsel that the Secretary of State had been in breach of article 33(1) of the Convention: the consequence of his refusal had been the return of the applicants to Sri Lanka.

Held

1. Article 33(1) required a contracting state not to "expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened", but its ambit was limited to those who had already arrived in the contracting state: it referred to the physical expulsion or return of the refugee.

2. It followed that the Secretary of State had not been in breach of article 33(1) of the Convention.

Counsel:

N Blake for the applicants; Miss P Baxendale for the respondent

PANEL: McCullough J

MCCULLOUGH J:

These two applicants, who apply for leave to move for judicial review of decisions taken in October 1991 by the Secretary of State, are from Sri Lanka. Indeed, they are now in Sri Lanka. They are Tamils. They wanted to leave Sri Lanka and come to the United Kingdom. It was decided by an agent who was acting for them that they should travel via Oman. They acquired two-week tourist visas to visit Oman and also forged British visas. They left Sri Lanka and got as far as Oman.

On 1 July 1991, they boarded a British aircraft intending to fly to the United Kingdom, or were about to do so, when they were arrested by the Omani authorities because of their possession of the forged visas. They were then held in custody in Oman for some considerable time. They were charged with criminal offences but were found not guilty in November 1991 and, thereafter, they were returned from Oman to Colombo. They have been in Sri Lanka ever since.

While they were in detention in Oman, they had the advantage of being represented by a Mr Burgess, a solicitor in England. He, I believe it was, caused applications to be made on their behalf to the Secretary of State for visas to enable them to travel to the United Kingdom, the basis of the applications being that they were refugees who were seeking political asylum.

On 10 and 14 October the applications were refused on the ground that there was no obligation on the Secretary of State to consider applications for political asylum from those who had not arrived in the United Kingdom. There was no obligation upon him or upon this country to facilitate the arrival of asylum seekers. The obligation was to consider applications from those who had arrived.

However, the Secretary of State had said, as long ago as 1987, that he would consider applications from people who were outside the United Kingdom on the basis that they would, so soon as they left their own country, become refugees, but that he would only consider applications from people who had particular links with this country.

The Secretary of State in his decision letter of 10 October, relating to the first of these two men, said that he did not have a sufficiently substantial link to qualify for treatment under that extra-rule discretion.

The second letter, four days later, in relation to the second applicant, reached substantially the same decision and, by reference, incorporated the reasoning that had been given in the refusal letter relating to the first applicant.

Mr Blake, on behalf of both applicants, submits that the refusals were unlawful because these applicants were refused, not after a consideration of the merits of their applications for political asylum, but on the basis that they did not have the necessary links with the United Kingdom.

He says that the Immigration Act 1971 empowers the Secretary of State to make, as he has done, immigration rules which he revises from time to time. In the current version of the rules, the Secretary of State has said -- I am not seeking to quote accurately -- that due attention would be paid to the 1951 Convention relating to the status of refugees. Article 33(1) of the Convention states that no contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

Mr Blake says that the refusal of these applications, when these men were in Oman, effectively resulted in their return to Sri Lanka, being the country in which they claim they were threatened on account of one or more of these considerations. Therefore, he submits, the Secretary of State acted contrary to article 33(1).

Miss Baxendale, on behalf of the Secretary of State, says that it has never been understood that the 1951 Convention had any applicability to those claiming refugee status until they arrived in the signatory country. She invites me to say that it is beyond argument that "no contracting State shall expel or return a refugee in any manner whatsoever" etc, implies that no contracting State shall physically expel or return a refugee. She says that article 33(1) does not refer, and has never been understood to refer, to someone who has not yet arrived here, even if he has already left the county from which he seeks to flee and even if the refusal to permit him to come here leads to his physical return by some other country to the country from which he is fleeing.

Despite Mr Blake's arguments, the conclusion to which I have come is that Miss Baxendale is right and that it is not arguable that article 33(1) refers to anything other than physical removal from this country. The applications, I am afraid, are refused.

DISPOSITION:

Applications refused

SOLICITORS:

Winstanley Burgess, London EC1; Treasury Solicitor