Sivakumuran, R (on the application of) v Secretary of State for the Home Department [1987] UKHL 1 (16 December 1987)

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	United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sivakumuran, R (on the application of) v Secretary of State for the Home Department [1987] UKHL 1 (16 December 1987) URL: http://www.bailii.org/uk/cases/UKHL/1987/1.html Cite as: [1988] 1 All ER 193, [1987] UKHL 1, [1988] Imm AR 147, [1988] AC 958, [1988] 2 WLR 92

These appeals are concerned with the question of what is the correct test to apply in order to determine whether six Tamils from Sri Lanka, who arrived in this country on various dates between 13 February and 31 May 1987, are entitled to the status of refugee, so as to be enabled, for the time being at least, to remain here.

Each of the Tamils, upon or shortly after his arrival, applied for asylum in the United Kingdom, claiming to be a refugee from Sri Lanka. The Secretary of State for the Home Department refused the applications of three of them on 20 August 1987 and of the other three on 1 September 1987. All six were granted leave to apply for judicial review of the Secretary of State's decisions. On 25 September 1987 McCowan J. dismissed each of the applications, but on 12 October 1987 the Court of Appeal (Sir John Donaldson M.R. Neill L-J. and Sir Roualeyn Cumming-Bruce) [1987] 3 W.L-R. 1047 reversed his judgment and quashed all six decisions. The Secretary of State now appeals, with leave of the Court of Appeal, to this House.

The question at issue in the appeals turns upon the proper interpretation of article IA(2) of the United Nations Convention Relating to the Status of Refugees (Cmd. 9171) dated 28 July 1951. That article, as amended by the Protocol dated 16 December 1966 (Cmnd. 3096), provides that the term "refugee" applies to any person who

The United Kingdom having acceded to the Convention and Protocol, their provisions have for all practical purposes been incorporated into United Kingdom law. Rules 16, 73 and 165 of the Statement of Changes in Immigration Rules (1983) (H.C. 169) (made under section 3(2) of the Immigration Act 1971) provide:

The critical words in article lA(2) of the Convention are "well-founded fear" of being persecuted for what may compendiously be called a Convention reason. The Court of Appeal's view of the meaning of these words, as expressed in the judgment of the court delivered by the Sir John Donaldson M.R. [1987] 3 W.L-R. 1047, 1052-1053, was as follows:

The Court of Appeal, in quashing the Secretary of State's decisions, proceeded on the basis that he had interpreted "wellfounded fear" as meaning that the applicant for refugee status must establish not only that he in fact feared persecution for a Convention reason, but also that the fear was objectively justified. They held that this was a misinterpretation, and that the Secretary of State should therefore consider the application anew, in the light of what they had decided to be the correct interpretation. It was not found that the applicants were in fact entitled to refugee status. As was made clear by this House in Reg. v. Secretary of State for the Home Department Ex parte Bugdaycay 1987 AC 514 the decision on that matter was one for the Secretary of State alone, not for the court exercising judicial review.

Mr. Laws, for the Secretary of State, argued that, while the existence of a state of fear in the applicant for asylum was clearly a subjective matter, the question whether the fear was well-founded fell to be assessed by the Secretary of State upon an objective basis in the light of facts and circumstances known to him or established to his satisfaction. The test was whether in the light of those facts and circumstances there was a real and substantial risk that the applicant would be persecuted for a Convention reason if returned to the country of his nationality.

Mr. Blom-Cooper, for the applicants Vathanan and Rasalingan, did not seriously dispute the correctness of the test propounded by Mr. Laws, but he maintained that the Secretary of State had not applied it in this case. On the other hand Mr. Nathan, for the applicant Navaratnam, and Mr. Beloff, for the remaining three applicants, supported the formulation favoured by the Court of Appeal, as in the main did Mr Plender for the United Nations High Commissioner for Refugees, to whom the House granted leave to intervene.

The construction contended for by the appellant finds some support in other provisions of the Convention. Thus section C of article 1 provides that the Convention shall cease to apply to any person falling under the terms of section A if inter alia:

- subject to a proviso which does not apply to a person who qualifies as a refugee under article lA(2).

There is a similar provision in paragraph (6) of section C in relation to a person who has no nationality. It is a possible interpretation of these provisions that "the circumstances in connection with which he has been recognised as a refugee" refer only, so far as an article lA(2) refugee is concerned, to the fact that the person formerly had a well-founded fear of persecution for a Convention reason. But a more likely interpretation is that the "circumstances" contemplated as having ceased to exist are those which caused the original fear of persecution to be wellfounded. The question whether such circumstances have ceased to exist can only be one to be determined objectively, in the light of any new circumstances presently prevailing in the country of the person's nationality. It is a reasonable inference that the question whether the fear of persecution held by an applicant for refugee status is well-founded is likewise intended to be objectively determined by reference to the circumstances at the time prevailing in the country of the applicant's nationality. This inference is fortified by the reflection that the general purpose of the Convention is surely to afford protection and fair treatment to those for whom neither is available in their own country, and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the individual in question.

The Court of Appeal's formulation would accord refugee status to one whose fears, though genuine, were objectively demonstrated to have been misconceived, that is to say one who was at no actual risk of persecution for a Convention reason. The Court of Appeal would qualify this by denying refugee status to one who, while holding a genuine fear, was not a person of reasonable courage, so that his fears were not such as a person of that degree of courage would entertain. The differentation means that the fears of some, but not those of others, would be allayed, and it might be by no means easy to decide what degree of courage a person of ordinary fortitude might be expected to display. Further, the court's illustration of the bank cashier threatened by an imitation firearm does not truly support the thesis for which it is prayed in aid. An objective observer of the scene would agree that at the time the imitation firearm was presented the cashier's fear was well-founded. But once it became clear that the firearm was an imitation the fear, if it continued to exist, would no longer be well-founded. Fear of persecution, in the sense of the Convention, is not to be assimilated to a fear of instant personal danger arising out of an immediately presented predicament. The claimant to refugee status is not immediately threatened with danger arising out of a situation then confronting him. The question is what might happen if he were to return to the country of his nationality. He fears that he might be persecuted there. Whether that might happen can only be determined by examining the actual state of affairs in that country. If that examination shows that persecution might indeed take place then the fear is well-founded. Otherwise it is not.

The Court of Appeal found some support for its formulation of the test in a decision of the United States Supreme Court, Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 94 L.Ed.2d 434. It was there held by a majority that in order for an alien to show a "well-founded fear of persecution" within the meaning of section 101(a)(42) of the Immigration and Nationality Act 1952, so as to be eligible for consideration for asylum as a refugee under section 208(a) of the Act, the alien need not prove that it was more likely than not that he or she would be persecuted upon return to his or her own country. The effect of section 208(a) was that an alien who qualified as a refugee under section 101(a)(42) (which reflected the language of article lA(2) of the Convention) might be granted asylum at the direction of the Attorney-General. Under another section (243(h" of the Act, deportation of an alien to any country was prohibited if the Attorney-General determined that his

The Supreme Court had previously decided, in Immigration and Naturalization Service v. Stevic 467 U.S. 407, that to qualify under section 243(h) an alien had to prove that it was more likely than not that he would be persecuted. It was argued for the United States Government in Immigration and Naturalization Service v. Cardoza-Fonseca that the same standard of proof was applicable to determine refugee status under section 101(a)(42). The Supreme Court rejected this argument. Stevens J., delivering the majority opinion, observed, at p. 447, that the "would be threatened" language in section 243(h) had no subjective component, whereas the word "fear" in section 101(a)(42) made the eligibility determination turn to some extent on the subjective mental state of the alien. Later he said:

Stevens J. stated, at p. 453, that there was no room for the view that because an applicant had only a 10 percent chance of being shot, tortured or otherwise persecuted he or she had no "well-founded fear" of the event happening. Quoting from Stevic he said:

Stevens J. also referred with approval, at pp. 452-453 to the views of certain academic writers quoted in a footnote, at p. 453 referring to ilia real chance that he will suffer persecution"'; "[the] appropriate test is 'reasonable chance,' 'substantial grounds for thinking,' or 'serious possibility.'"

It would accordingly appear that Stevens J. was of opinion that it was appropriate to weigh up upon the basis of an objective situation established by evidence whether or not there was a reasonable chance or serious possibility of persecution. There is no suggestion that the matter should be looked at only from the point of view of the individual claiming to have the well-founded fear. The case, accordingly, does not support the Court of Appeal's formulation of the test, but rather favours that put forward on behalf of the Secretary of State by Mr. Laws.

In my opinion the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country. In Reg. v. Governor of Pentonville Prison Ex parte Fernandez [1971 1 WLR 987, this House had to construe section 4 1 c of the Fugitive Offenders Act 1967, which requires that a person shall be returned under the Act if it appears

I consider that this passage appropriately expresses the degree of likelihood to be satisfied in order that a fear of persecution may be well-founded.

Mr. Plender presented a careful and thoughtful argument largely based on the travaux preparatoires of the Convention and Protocol. The relevant expressions used in these works, such as "good reason" or "reasonable grounds" for fear of persecution, present questions of interpretation similar to those which arise as to the meaning of "well-founded fear" in the Convention itself. As I have indicated, the Convention provides a context which throws some light upon that meaning, and in the result I have not found that the oeuvres preparatoires provide helpful guidance nor any persuasive indication that the objective approach to "wellfounded" is erroneous. I may add that I agree with observations upon Mr. Plender's argument which are contained in the speech of my noble and learned friend, Lord Goff of Chieveley.

If the Court of Appeal's formulation of the test were correct, then the decisions of the Secretary of State undoubtedly would fall to be quashed. The terms of his decision letters make it clear that he has proceeded on the basis of the objective situation in Sri Lanka as understood by him. The affidavit of Mr. Potts, an official of the Home Office, indicates that the Secretary of State took into account reports of the refugee unit of his department compiled from sources such as press articles, journals and Amnesty International publications, and also information supplied to him by the Foreign Office and as a result of recent visits to Sri Lanka by ministers. It is well known that for a considerable time Sri Lanka, or at least certain parts of that country, have been in a serious state of civil disorder, amounting at times to civil war. The authorities have taken steps to suppress the disorders and to locate and detain those responsible for them. These steps, together with the activities of the subversives, have naturally resulted in painful and distressing experiences for many persons innocently caught up in the troubles. As the troubles have occurred principally in areas inhabited by Tamils, these are the people who have suffered most. The Secretary of State has in his decision letters expressed the view that army activities aimed at discovering and dealing with Tamil extremists do not constitute evidence of persecution of Tamils as such. This was not disputed by counsel for any of the applicants, nor was it seriously maintained that any sub-group of Tamils, such as young males in the north of the country, were being subjected to persecution for any Convention reason. It appears that the Secretary of State, while taking the view that neither Tamils generally nor any group of Tamils were being subjected to such persecution, also considered whether any individual applicant had been so subjected and decided that none of them had been. Consideration of what had happened in the past was material for the purpose of assessing the prospects for the future.

It was argued that the Secretary of State's decision letters did not clearly indicate that he had applied the "real and substantial risk" test, but left it open that he might have applied a "more likely than not" test. But there is clearly to be gathered from what the Secretary of State has said that in his judgment there existed no real risk of persecution for a Convention reason.

My Lords for these reasons I would allow the appeals and restore the orders of McCowan J.

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Keith of Kinkel, Lord Templeman and Lord Goff of Chieveley. I agree with them and for the reasons they give I would allow the appeals and restore the order of McCowan J.

In order for a "fear" of "persecution" to be "well-founded" there must exist a danger that if the claimant for refugee status is returned to his country of origin he will meet with persecution. The Convention does not enable the claimant to decide whether the danger of persecution exists. The Convention allows that decision to be taken by the country in which the claimant seeks asylum. Under the Act of 1971 applications for leave to enter the United Kingdom, including applications based on a claim to refugee status, are determined by the immigration authorities constituted by the Act. By the Rules made under the Act the appropriate authority to determine whether a claimant is a refugee is the Secretary of State. The task of the Secretary of State in the present proceedings was and is to determine in the case of each appellant whether the appellant will be in danger of persecution if he is sent back to Sri Lanka. Danger from persecution is obviously a matter of degree and judgment. The Secretary of State accepts that an appellant who fears persecution is entitled to asylum in this country unless the Secretary of State is satisfied that there is no real and substantial danger of persecution. The Secretary of State has concluded that there is no real and substantial danger of persecution. In Reg. v. Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, 535, 537 I pointed out that:

In the present case an examination of the decision making process does not disclose any error on the part of the Secretary of State or justify the court in contradicting his view that the applicants will not be in danger of persecution if they are returned to Sri Lanka. I agree that the appeals must be allowed.

The manner in which the issue in the present case came before your Lordships' House was almost calculated to undermine confidence in the test adopted by the Court of Appeal. First, the issue appears barely to have surfaced in argument before McCowan J. and so was only touched upon by him in a brief passage in his judgment. Second, Sir John Donaldson M.R. [1987] 1 W.L.R. 1047, 1052-1053 supported the test favoured by the Court of Appeal by reference to an example (a bank cashier held up by a masked man armed with an imitation gun) which appears to me, as it does to my noble and learned friend, Lord Keith of Kinkel, to be inapposite. Third, in argument before your Lordships, Mr. BlomCooper for certain of the applicants abandoned any support for the Court of Appeal's test; Mr. Beloff's continued support for it could hardly be described as enthusiastic; only Mr. Nathan was prepared to give it his whole-hearted support. In truth, however, it was not until Mr. Plender made his submissions on behalf of the intervener, the United Nations High Commissioner for Refugees, that the substance of the argument became fully exposed.

It is, I think, important to state precisely the form of the competing interpretations of "well-founded fear" in article IA(2) of the Convention. The view of the Court of Appeal, as expressed in the judgment of Sir John Donaldson M.R., was that "well-founded fear" is demonstrated by proving (a) actual fear, and (b) good reason for that fear, looking at the situation from the point of view of a person of reasonable courage circumstanced as was the applicant for refugee status. The submission of Mr. Laws, for the Secretary of State, was that a claimant for refugee status must establish (1) that he was afraid that he would be persecuted for a Convention reason, and (2) that there existed a real or substantial risk or danger that he would in fact be so persecuted if returned to the country in question. The submission of Mr. Plender for the High Commissioner was that a "well-founded fear" means fearing with reason. It followed that a claimant for refugee status need only show that he had "good reason" to fear persecution for a Convention reason, i.e. that, on the basis of objective facts, his fear was reasonable and plausible. Mr. Plender accepted that, in applying that test, the Secretary of State was entitled to take into account circumstances unknown to the applicant; but he submitted that the question was whether, on the basis of the objective facts as ascertained by the Secretary of State, a reasonable man, in the position of the applicant, would think that there was a risk.

Now, when I consider these competing submissions, three matters immediately strike me. The first is that, as I have already indicated, Sir John Donaldson M.R.'s example of the imitation firearm is not apposite on the approach proposed by the High Commissioner: for the Secretary of State could, by his own' inquiries, ascertain whether the applicant was acting on the basis of a straightforward misapprehension as to the facts and, if so, proceed on the basis of the true facts. The second is that the rival interpretations of the Secretary of State and of the High Commissioner are not far apart, because each proceeds on the basis of the objective facts, and not exclusively on the basis of the facts known to the applicant, or believed by him to be true. It is for that reason that (although, in agreement with my noble and learned friend, Lord Keith of Kinkel, I consider that article 1 C(5) and (6) of the Convention provide insuperable barriers to the test favoured by the Court of Appeal) I do not derive any assistance from those provisions when considering the rival interpretations of the High Commissioner and the Secretary of State. It seems to me that they are equally apt to be applied on th~ basis of either interpretation, because on each interpretation the refugee will have been admitted on the basis of objective facts which, under article lC(5) or (6), will have ceased to exist. The third matter is that the rival approaches of the Secretary of State and the High Commissioner are both coloured by policy considerations to which each, very understandably, attaches importance. Following the decision of the Court of Appeal, the Secretary of State is evidently concerned that this country, which is regarded as a suitable haven by many applicants for refugee status, may become flooded with persons seeking to acquire refugee status when, objectively considered, there is no real risk of their being persecuted for a Convention reason. The High Com missioner, on the other hand, is concerned, as your Lordships were told, by the fact that circumstances do arise in which certain states are reluctant to grant refugee status for fear of prejudicing relations with the country where it is alleged by the applicant that a danger of persecution exists; it is thought that they may find it easier to overcome this reluctance if they are released from the burden of deciding whether, in their own judgment, there is or is not such a risk.

I must confess to feeling sympathy for both points of view. But in the end the question has to be decided as a matter of construction, on established principles. As I see it, the crucial question is this: does the applicant have to establish, as the Secretary of State asserts, that, on the objective facts, a real or substantial risk of persecution for a Convention reason actually exists? Or does he only have to establish, as the High Commissioner asserts, that, on the same facts, fear by ,the applicant of persecution for a Convention reason is reasonable and plausible? As I have already stated, since on either test the Secretary of State is entitled to take into account objective facts not known to the applicant, there is, in my opinion, not a great deal of difference in the result between these two tests; indeed, I cannot help feeling that, in the majority of cases, both tests would lead to the same conclusion.

In support of his submissions, Mr. Plender advanced three main arguments. First, he relied upon the objects of the Convention. The Convention, he submitted, had its origin in the need to protect displaced persons fleeing from Eastern Europe after the second world war on account of reasonably held fears of persecution; and the preamble to the 1951 Convention reflected the profound concern of the United Nations for refugees and the need to assure refugees of the widest possible protection of their fundamental rights and freedoms. It therefore followed, asserted Mr. Plender, that the provisions of the 1951 Convention should be interpreted liberally, with this humanitarian objective in mind. Second, Mr. Plender relied on the travaux preparatoires for the Convention, so far as they related to the expression "well-founded fear" of persecution. He referred your Lordships in particular to the original United Kingdom proposal, and to other proposals advanced by France and the United States; to the report by the United Nations Ad Hoc Committee on Statelessness and Related Problems and that Committee's comments on the draft Convention; and to the Constitution of the International Refugee Organisation, the Ad Hoc committee having asserted its intention to afford by the new Convention at least as much protection for refugees as had been provided by previous "agreements,"among which must be included the Constitution of the International Refugee Organisation Third, he invoked the Handbook on Procedures and Criteria for Determining Refugee Status issued by the High Commissioner in September 1979, paragraph 42 of which reads as follows:

On the basis of this material, Mr. Plender sought to support the statement of Sir John Donaldson M.R. in the Court of Appeal [1987] 3 W.L.R. 1047, 1052 that:

I am however unable to accept these submissions. The objects of the Convention are, in my opinion, consistent with the interpretation of the Secretary of State, for those objects will surely be fulfilled if refugee status is afforded in cases where there is a real and substantial risk of persecution for a Convention reason. The travaux preparatdires, which I have studied with care, do not appear to me to be inconsistent with the interpretation of the Secretary of State. Paragraph 42 of the Handbook amounts to a statement of the point of view espoused by the High Commissioner, but provides no justification for that point of view, as a matter of construction. Above all, none of the material on which Mr. Plender relied seemed to me to face up to the basic artificiality of the approach which he sought to support. A purely subjective approach, such as that apparently favoured by the Court of Appeal, has at least the merit of inherent consistency. But once it is accepted that the Secretary of State is entitled to look not only at the facts as seen by the applicant, but also at the objective facts as ascertained by himself in relation to the country in question, he is, on the High Commissioner's approach, not asking himself whether the actual fear of the applicant is plausible and reasonable; he is asking himself the purely hypothetical question whether, if the applicant knew the true facts, and was still (in the light of those facts) afraid, his fear could be described as plausible and reasonable. On this approach, the Secretary of State is required to ask himself a most unreal question. His appreciation is in any event likely to be coloured by his own assessment of the objective facts as ascertained by him; and it appears to me that the High Commissioner's approach is not supported, as a matter of construction, by the words of the Convention, even having regard to its objects and to the travaux preparatoires. In truth, once it is recognised that the expression "well-founded" entitles the Secretary of State to have regard to facts unknown to the applicant for refugee status, that expression cannot be read simply as "qualifying" the subjective fear of the applicant - it must, in my opinion, require that an inquiry should be made whether the subjective fear of the applicant is objectively justified. For the true object of the Convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well-founded.

For these reasons, I too would allow the appeals. I wish however to add one or two footnotes. First, I respectfully agree with my noble and learned friend, Lord Keith of Kinkel, for the reasons given by him, that the requirement that the applicant's fear must be well-founded means no more than that there has to be demonstrated a reasonable degree of likelihood of his persecution for a Convention reason; indeed, I understand Mr. Laws' submission, that there must be a real and substantial risk of persecution, to be consistent with that interpretation. Second, it is not to be forgotten that the Secretary of State has in any event an overriding discretion to depart from the Immigration Rules and admit an applicant for refugee status, if he considers it just to do so. Third, I am with all respect unable to agree with the view expressed by Sir John Donaldson M.R., at p. 1051, that different tests are applicable under article 1 and article 33 of the Convention. Article 33(1) provides as follows:

The Master of the Rolls suggested, at p. 1053, that, even if the Secretary of State decides that an applicant is a refugee as defined in article 1, nevertheless he has then to decide whether article 33, which involves an objective test, prohibits a return of the applicant to the relevant country. I am unable to accept this approach. It is, I consider, plain, as indeed was reinforced in argument by Mr. Plender with reference to the travaux preparatoires, that the non-refoulement provision in article 33 was intended to apply to all persons determined to be refugees under article 1 of the Convention. I cannot help feeling, however, that the consistency between articles 1 and 33 can be more easily accepted if the interpretation of "well-founded fear" in article 1A(2) espoused by the Secretary of State is adopted, rather than that contended for by the High Commissioner. Finally, I wish to express my understanding of the objectives of the High Commissioner, and my appreciation of the argument advanced by Mr. Plender on his behalf. It may be that the High Commissioner will be unpersuaded by the opinions expressed in your Lordships' House, in which event he can continue conscientiously to express the views set out in paragraph 42 of the Handbook. But I cannot myself conscientiously hold that the Secretary of State is bound by that approach; and I feel confident that the High Commissioner need entertain no well-founded fear that, in this country, the authorities will feel in any way inhibited from carrying out the United Kingdom's obligations under the Convention by reason of their having to make objective assessments of conditions prevailing in other countries overseas.

Upon Report from the Appellate Committee to whom was referred the Cause Regina against Secretary of State for the Home Department ex parte Sivakumaran (A.P.), That the Committee had heard Counsel on Monday the 9th, Tuesday the 10th and Thursday the 12th days of November last, upon the Petition and Appeal of the Secretary of State for the Home Department, of Whitehall, London SW1, praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 12th of October 1987, might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as upon the case of Saravamuthu Sivakumaran lodged in answer to the said Appeal; as also upon the case lodged by the United Nations High Commissioner for Refugees, the Intervenor in the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Civil Division) of the 12th day of October 1987 complained of in the said Appeal be, and the same is hereby, Reversed, save as to legal aid taxation, and that the Order of Mr. Justice McCowan of the 25th of September 1987 be, and the same is hereby Restored: And it is further Ordered, That the Costs incurred by the said Respondent in respect of the said Appeal to this House be taxed in accordance with Schedule 2 to the Legal Aid Act 1974; And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

United Kingdom House of Lords Decisions

HOUSE OF LORDS