R v. Secretary of State for the Home Department, Ex parte Sivakumaran; R v. Secretary of State for the Home Department, Ex parte Vaithiakingam; R v. Secretary of State for the Home Department, Ex parte Vilvarajah; R v. Secretary of State for the Home Department, Ex parte Vathanan; R v. Secretary of State for the Home Department, Ex parte Rasalingan; R v. Secretary of State for the Home Department, Ex parte Navaratnam

Publisher	United Kingdom: Court of Appeal (England and Wales)
Author	Court of Appeal (Civil Division)
Publication Date	12 October 1987
Citation / Document Symbol	[1987] 3 WLR 1047
Cite as	R v. Secretary of State for the Home Department, Ex parte Sivakumaran; R v. Secretary of State for the Home Department, Ex parte Vaithiakingam; R v. Secretary of State for the Home Department, Ex parte Vilvarajah; R v. Secretary of State for the Home Department, Ex parte Vathanan; R v. Secretary of State for the Home Department, Ex parte Rasalingan; R v. Secretary of State for the Home Department, Ex parte Navaratnam, [1987] 3 WLR 1047, United Kingdom: Court of Appeal (England and Wales), 12 October 1987, available at: https://www.refworld.org/cases,GBR_CA_CIV,3ae6b70e27.html [accessed 21 May 2023]
Disclaimer	This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

COURT OF APPEAL (Civil Division)

[1987] 3 WLR 1047

Hearing Date: 5, 6, 12 October 1987

12 October 1987

Index Terms:

Immigration -- Refusal of entry -- Refugee, intention to stay as -- Application for asylum -- Applicant claiming fear of persecution on ground of race -- Whether "well-founded fear of being persecuted" -- Whether subjective test -- Statement of Changes in Immigration Rules (1983) (HC 169), paras 16, 73

Held:

The applicants, six Sri Lankan Tamils, all sought political asylum in the United Kingdom under the provisions of paragraph 73 of the Statement of Changes in Immigration Rules (1983) (HC 169) on the ground that they had a well-founded fear of being persecuted for reasons of race if they were returned to Sri Lanka. The Secretary of State interpreted the provisions of paragraphs 16 and 73 of the Immigration Rules (which required full account to be taken of the Convention and Protocol Relating to the Status of Refugees (Cmd 9171 and Cmnd 3096) as meaning that an applicant for refugee status had to establish not only fear of persecution but also that such fear was objectively justified, and he refused to grant the applicants refugee status on the ground that their fears were not well-founded within the terms of the convention. The applicants sought judicial review of the Secretary of State's decision. On 25 September McCowan J refused the applications.

On appeal by the applicants:-

Held, allowing the appeals, that in order to demonstrate a well-founded fear of persectuion an applicant for refugee status had to show actual fear and good reason for it, viewing the applicant's situation from the point of view of one of reasonable courage; that "well-founded" qualified the subjective nature of the fear to be demonstrated so as to exclude paranoid fear, but it did not transform it so as to exclude fears which could be shown objectively to have been misconceived; and that, accordingly the Secretary of State had erred in law and the decisions would be quashed

Decisions of McCowan J reversed.

Cases referred to in the Judgment:

Immigration and Naturalization Service v Cardoza-Fonseca (1987) 107 S Ct 1207

Cases cited in the Judgment:

Musisi, In re [1987] AC 514; [1987] 2 WLR 606; [1987] 1 All ER 940 HL (E) Reg v Governor of Ashford Remand Centre, Ex parte Postlethwaite [1987] 3 WLR 365; [1987] 2 All ER 985, HL (E)

Reg v Lancashire County Council, Ex parte Huddleston [1986] 2 All ER 941, CA Reg v Secretary of State for the Home Department, Ex parte Coomaraswamy (unreported), 28 June 1985, Taylor J

Reg v Secretary of State for the Home Department, Ex parte Gurmeet Singh (unreported), 22 May 1987, DC

Reg v Secretary of State for the Home Department, Ex parte Jeyakumaran (unreported), 28 June 1985, Taylor J

Reg v Secretary of State for the Home Department, Ex parte R, The Times, 8 June 1987, CA

REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte SIVAKUMARAN; REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte VAITHIALINGAM; REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte VILVARAJAH

Introduction:

APPEALS from McCowan J.

By applications dated 21 April 1987 the applicants, Saravamuthu Sivakumaran, Skandarajah Vaithialingam and Nadarajah Vilvarajah, sought judicial review by way of orders of certiorari to quash decisions of the Secretary of State for the Home Department made on 20 April whereby the Secretary of State had refused to grant the applicants political asylum and had made directions for their removal from the United Kingdom. On 25 September 1987 McCowan J refused the applications. The applicants appealed on the grounds, inter alia, that the judge erred in law (1) in the construction he placed on the words "well-founded fear of being persecuted for reasons of race, religion, nationality . . . " in article 1(A)(2) of the Convention Relating to the Status of Refugees 1951 (Cmd 9171) and paragraph 73 of the Statement of Changes in Immigration Rules (1983) (HC 169) and in rejecting the submission that the proper test to be applied in determining whether the persecution feared was for a Convention reason was that of the perception of the victim judged from an objective standpoint; (2) in holding that the approach of the Secretary of State was in substance different from that deprecated in Reg v Secretary of State for the Home Department, Ex parte Jeyakumaran (unreported), 28 June 1987, Taylor J and by the Court of Appeal in Reg v Secretary of State for the Home Department, Ex parte R (unreported), 3 June 1987; Court of Appeal (Civil Division) Transcript No 695 of 1987, CA

REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte VATHANAN; REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte RASALINGAN

APPEALS from McCowan J.

By applications dated 3 September 1987 the applicants, Navaratnasigham Vathanan (by his next friend Jeganathan Asokan) and Vinasithamby Rasalingan, sought judicial review by way of orders of certiorari to quash decisions of the Secretary of State for the Home Department made on 1 September whereby the Secretary of State had refused to grant the applicants political asylum and had made directions for their removal from the United Kingdom. On 25 September 1987 McCowan J refused the applications. The applicants appealed on the grounds,

inter alia, that the judge erred (1) in rejecting the submission that the requirements of paragraph 73 of the Statement of Changes in Immigration Rules (1983) were satisifed where the applicants could show (a) a well-founded fear of injurious action at the hands of the Sri Lankan army, (b) a fear that the actions of the army were directed against Tamil Civilians in general and against young males of the region in particular, rather than against particular persons suspected of terrorist activities, and (c) that the fear set out in (b) was a reasonable one; (2) in determining that it was incumbent on the applicants to prove what the intentions of the Sri Lankan army were in acting against Tamil civilians it was sufficient if the applicants' fear of persecution might be true; (3) in deciding that the Secretary of State was entitled to take the view that the applicants' fears were not of persecution but of force inflicted in the course of measures taken against civil disorder.

REGINA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, Ex parte NAVARATNAM

APPEAL from McCowan J

By an application dated 3 September 1987 the applicant, Kandiah Navaratnam, sought judicial review by way of, inter alia, an order of certiorari to quash a decision of the Secretary of State for the Home Department made on 1 September whereby the Secretary of State had refused to grant the applicant political asylum and had made directions for his removal from the United Kingdom. On 25 September 1987 McCowan J refused the application. The applicant appealed on the grounds, inter alia, that (1) the judge erred in law in holding that the Secretary of State had not applied the test criticised by Taylor J in Reg v Secretary of State for the Home Department, Ex parte Jeyakumaran (unreported), 28 June 1985; and (2) it being accepted expressly or by implication that the applicant had a genuine fear of returning to Sri Lanka, on the facts that was a well-founded fear of persecution within the meaning of the Convention Relating to the Status of Refugees 1951 and the Protocol of 1967, and no reasaonable Secretary of State could have decided otherwise.

Counsel:

KS Nathan QC and George Warr for Navaratnam; Andrew Collins QC and Nicholas Blake for Vathanan and Rasalingan; Alper Riza for Sivakumaran, Vilvarajah and Vaithialingam; Roger Ter Haar for the Secretary of State.

Judgment-READ:

Cur adv vult 12 October. The following judgment of the court was handed down.

PANEL: Sir John Donaldson MR, Neill LJ and Sir Roualeyn Cumming-Bruce

Judgment One:

SIR JOHN DONALDSON MR. On 25 September 1987 McCowan J dismissed applications for judicial review by six Tamils who are nationals of Sri Lanka. The decisions sought to be reviewed were that their applications for asylum in the United Kingdom be dimissed and that arrangements be made for their removal to Sri Lanka.

Every such application is entitled to individual consideration and the circumstances affecting each were not indentical. However, the immigration policy framework is the same in each case and it is conceded thatif the Secretary of State has misdirected himself in his application of that policy, the orders should be set aside in order to give him an opportunity to re-examine each case afresh in the light of our judgment. We therefore turn at once to that issue.

The relevant policy is set out in the Statement of Changes in Immigration Rules (1983) (HC 169). There are parallel rules applying to "Control on Entry" and "Control after Entry" contained respectively in section 1 and section 2. Since all the applicants sought asylum upon entry, we are concerned only with section 1, the relevant rules being contained in paragraphs 16 and 73:

Refugees

16. Where a person is a refugee full account is to be taken of the provisions of the Convention and Protocol relating to the Status of Refugees (Cmd 9171 and Cmnd 3096). Nothing in these rules is to be construed as requiring action contrary to the United Kingdom's obligations under these instruments.

Part VII: Asylum

73. Special considerations arise where the only country to which a person could be removed is one to which he is unwilling to go owing to well-founded fear of being persecuted for reasons race, religion, nationality, membership of a particular social group or political opinion. Any case in which it appears to the immigration officer as a result of a claim or information given by the person seeking entry at a port that he might fall within the terms of this provision is to be referred to the Home Office for decision regardless of any grounds set out in any provision of these rules which may appear to justify refusal of leave to enter. Leave to enter will not be refused if removal would be contrary to the provisions of the Convention and Protocol relating to the Status of Refugees."

The United Kingdom is a signatory to the Convention and Protocol ("The Convention"), but it forms no part of the domestic law of this country. Nevertheless, as one would expect, the immigration rules are framed on the basis that the Secretary of State will give effect to its provisions.

Subject to certain exceptions which are immaterial for present purposes, article 1 defines a "refugee" as being one who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that coutnry; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

In succeeding articles the Convention provides something in the nature of a "Bill of Rights" for those who have refugee status, but nowhere does it in terms grant them a right of asylum. What it does do is to limit the freedom of a contracting state to expel a refugee lawfully in its territory (article 32) and to prohibit his expulsion to return

"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": article 33.

There is a clear contrast between the pre-conditions for acquiring the status of refugee, which require a well-founded fear of persecution and for the application of article 33 which requires a threat to the life or freedom of the person concerned. "Persecution" is not defined in the Convention. It clearly includes a threat to life or freedom, but is much wider and, depending upon its nature and degree, could perhaps be defined as "serious harassment." However, there may be another distinction, which turns upon the true meaning of "well-founded fear" in the definition of refugee. The Secretary of State interprets this expression as meaning that the applicant for refugee status must establish not only that he in fact fears persecution upon one or more of the specified grounds, but also that these fears are objectively justified. The applicants contend that they need only establish the genuineness of their expressed fears on one or more of the specified grounds and that, in their particular circumstances, such fears are not unreasonable.

This conflict of interpretation lies at the heart of these appeals, since the Secretary of State, applying his interpretation, has said that in none of these cases is he satisfied that the applicant has a well-founded fear of persecution in Sri Lanka within the terms of the Convention. This involves a refusal to grant the applicants refugee status, thus requiring them to justify their claims to be allowed to enter the country under other specific immigration rules, eg as a visitor or a student, which they cannot do. If he had applied the interpretation contended for by the applicants, he might have accorded them refugee status. If he had done so, the Secretary of State would have had a general discretion whether to permit them to enter which might or might not have been fettered by article 33, according to how he found the facts in each individual case. But there is a real distinction between denying entry to one who is not a refugee within the meaning of the Convention and taking the same course in relation to one who is. Even if article 33 did not apply, the policy considerations applicable in the case of a bona fide refugee, which would of course be matters for the Secretary of State and not for the court, might well be quite different.

This is not a matter which has ever before been considered by the courts of this coutnry, at least in this acute form, and we doubt whether it was fully developed before McCowan J due, perhaps to the speed with which some of these applications where brought before the court. At all events McCowan J simply said:

"Whereas the question of whether an applicant has a fear of being persecuted on the ground of race is a subjective matter, the question of whether that fear is well-founded has to be tested objectively. Mr Riza, who has appeared for three of the applicants, says that it has to be the objective perception of the victim. I see no reason to add that gloss, for which I find no justification in the authorities, and I do not do so."

The same point was, however, considered by the Supreme Court of the United States in Immigration and Naturalization Service v Cardoza-Fonseca (1987) 107 S Ct 1207. The majority decision of the court, delivered by Stevens J (Rehnquist CJ, Powell and White JJ dissenting) is of high persuasive authority, not only because of its status as a supreme common law court, but also because the

Convention should, if possible, be applied consistently in all jurisdictions.

Under United States law a finding that an alien is a refugee, as defined in the Convention, creates eligibility for asylum at the discretion of the Attorney-General of the United States: section 208(a) of the Immigration and Nationality Act 1952 as amended. By section 243(h) of the Act, an alien has a right to resist deportation where he is threatened with persecution in the country to which he would be deported. Whilst the right is not apparently absolute in terms, the court assumed that the Attorney-General would apply article 33 of the Convention where the alien could bring himself within the terms of the section. The authorities established that in the context of section 343(h) the test of whether there was a threat of persecution was objective -- the applicant had to show on a balance of probabilities that he would be subject to such a threat. The issue facing the Supreme Court was whether the same approach was to be adopted in deciding refugee status and consequential discretionary eligibility for asylum under section 208(a).

Whilst it will be seen that the legislative context is different in detail, the fundamental issue was the same as that which faces this court in these appeals.

The court quite clearly rejected the argument that "a well-founded fear" needed to be established on the balance of probabilities, view objectively, and would, accordingly, have rejected the interpretation put forward by the Secretary of State in these appeals. Where we have greater difficulty, bred no doubt of our lack of familiarity with United States jurisprudence, is in divining precisely what interpretation the court was putting on this phrase. Clearly it was importing a subjective element into the equation, but beyond that we are left in some doubt. However we note thatthe court referred, with apparent approval, to the explanation of the international drafting committee that the phrase "well-founded fear of being the victim of persecution" meant "that a person has either been actually a victim of persecution or can show good reason why he fears persecution."

Authority apart, we would accept that "well-founded fear" is demonstrated by proving (a) actual fear and (b) good reason for this fear, looking at the situation from the point of view of one of reasonable courage circumstanced as was the applicant for refugee status. Fear is clearly an entirely subjective state experienced by the person who is afraid. The adjectival phrase "well-founded" qualifies, but cannot transform, the subjective nature of the emotion. The qualification will exclude fears which can be dismissed as paranoid, but we do not understand why it should exclude thosae which, although fully justified on the face of the situation as it presented itself to the person who was afraid, can be shown objectively to have been misconceived. A simple, but graphic, example will illustrate out point. A bank cashier confronted with a masked man who points a revolver at him and demands the contents of the till could without doubt claim to have experienced "a well-founded fear". His fears would have been no less well-founded if, one minute later, it emerged that the revolver was a plastic replica or a water pistol.

In our judgment the Secretary of State applied the wrong test and therefore erred in law. It follows that all six decisions should be quashed thus leaving it open to him to reconsider each on the correct basis. It therefore becomes unnecessary to deal with the further submissions that on the facts the decisions were untenable. Nevertheless the Secretary of State may wish to to take note of some of the criticisms. For example, some of the applicants have expressed fears for their lives as a result of the indiscriminate shelling by the forces of law and order of villages believed to contain insurgents. Under the terms of the Convention this would not form a basis for claiming refugee status. But it might well be different if it appeared that these forces would not have resorted to indiscriminate shelling, but for the fact that all the villagers, whether insurgents or not, were of a particular race.

For the avoidance of doubt, we should make it clear that the reconsideration should be in two stages. First the Secretary of State should consider whether the applicants are refugees within the meaning of that word in the Immigration Rules and the Convention. This involves, inter alia, subjective considerations such as the age and personal experiences of the applicant and of those known to him. If he decides that they are not refugees, that is the end of the matter, unless he is prepared to admit them in the exercise of his overriding residual discretion to depart from the Immigration Rules. If, however, he decides that any applicant is a refugee as so defined, he has then to decide whether article 33, which involves an objective test, prohibits a return of that applicant to Sri Lanka. If article 33 applies, the applicant has to be allowed to enter or be sent to some other country which will accept him and to which the same considerations do not apply. If article 33 does not apply, the Secretary of State has a complete discretion whether or not to permit the applicant to enter.

The appeals will be allowed accordingly.

DISPOSITION:

Appeal allowed.

Leave to appeal.

SOLICITORS:

Chatwani & Co, Southall, Winstanley-Burgess; Winstanley-Burgess; Treasury Solicitor.