CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 13 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 9856/82 by N.K. against the United Kingdom           The European Commission of Human Rights sitting in private on 14 May 1987, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 17 May 1982 by N.K. against the United Kingdom and registered on 18 May 1982 under file No. 9856/82;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having regard to:   -        the Commission's decision of 8 December 1984 to adjourn its         examination of the application pending the conclusion of         domestic proceedings or the applicant's imminent deportation;   -        the applicant's further submissions of 22 August 1985;   -        the Commission's decision of 18 October 1985 to communicate         the application to the respondent Government and request them         to submit written observations on its admissiblity and merits;   -        the respondent Government's letter of 11 February 1986 and the         applicant's comments thereon of 5 March 1986;   -        the Commission's decision of 13 March 1986 again to request         observations in writing on the admissibsility and merits of         the application;   -        the observations of the respondent Government on the         admissiblity only of the application dated 11 June 1986 and         the applicant's submissions in reply dated 4 July 1986;   -        the exchange of correspondence between the parties summarised         to the Commission in the respondent Government's letter of         3 December 1986 and the applicant's representative's letter of         29 January 1987;   -        the further report prepared under Rule 40 and presented to         the Commission on 11 December 1986 and the Commission's         deliberations thereon;           Having deliberated;           Decides as follows:   THE FACTS           The facts as they have been submitted on behalf of the applicant, a Sri Lankan citizen born in 1959, and a student, currently living in England, by Sir James Fawcett QC and Dr.   R. Plender, instructed by the United Kingdom Immigrants Advisory Service of London WC2, may be summarised as follows:           The applicant is a Tamil who was given leave to enter the United Kingdom as a student on 9 September 1977.   The permission was granted for one year, and the applicant was sponsored by his brother who was resident in the United Kingdom.   The permission was extended, subject to a continuing condition prohibiting the applicant from taking employment until September 1979.           The applicant became estranged from his brother, who ceased to support him.   He took employment to support himself, and in May 1979 was convicted before the Ealing Magistrates for breaching a condition of his leave to enter the United Kingdom, contrary to Section 24 (1)(b)(ii) of the Immigration Act 1971 ("the 1971 Act"), and fined £50.           The applicant applied for a further extension of his leave to remain in the United Kingdom, which application was refused on 8 August 1980.   The applicant appealed against this refusal, but did not attend that appeal, which was dismissed on 2 September 1981.   The applicant anticipated that the outcome of the hearing would be unfavourable to him, and feared being returned to Sri Lanka.   From the date of the dismissal of his appeal the applicant became liable to deportation as an overstayer.           On 27 January 1982 the applicant was arrested and charged with remaining in the United Kingdom beyond the time permitted by his leave, contrary to Section 24 (1)(b)(i) of the 1971 Act.   On 19 February 1982 he was convicted by Camberwell Green Magistrates' Court of this offence, and fined £70, with an alternative of 14 days imprisonment, with the recommendation of his deportation from the United Kingdom.   The applicant was unable to pay the fine and therefore served the period of imprisonment.   He continued to be detained thereafter, pending the making of a deportation order in accordance with paragraph 2 (1) of Schedule 3 to the 1971 Act.   He appealed against the recommendation that he be deported but, on 24 March 1982, he withdrew that appeal.           On 24 February 1982 the applicant's then solicitors wrote to the Home Office stating that he wished to apply for political asylum. On 16 March 1982 the applicant was interviewed at Ashford Remand Centre in connection with his asylum application.   On 20 April 1982 the Home Office replied that a deportation order had been made against the applicant on 15 April 1982.   The reply did not refer to the applicant's request for asylum.   Before receiving the Home Office's reply, the applicant's solicitors wrote a letter drafted by counsel on 16 April 1982 to the Home Office setting out the basis of the applicant's claim for asylum.   This letter referred to the outbreak of serious communal violence in Sri Lanka in July and August 1981, the declaration of a state of emergency on 17 August 1981 and a report dated 20 September 1981 concerning the holding of Tamils incommunicado.           The same letter set out the applicant's activities in the United Kingdom on behalf of Tamil separatists.   The applicant had been involved, since his arrival in the United Kingdom, with the political question of the situation of Tamils in Sri Lanka.   This political activity had continued after the commencement of the communal violence in Sri Lanka.   The applicant was closely concerned with a leader of the separatist movement who had apparently received asylum.   The applicant had distributed leaflets at the Sri Lankan High Commission and elsewhere, had picketed a Sri Lankan exhibition at the Commonwealth Institute, and had attended meetings at which the idea of a separate Tamil State was discussed.   He considered it inconceivable that the Sri Lankan authorities might be ignorant of his activities and possible that they would torture him on his return.           By further letter of 22 April 1982 the applicant's then solicitors asked the Home Office to reconsider the decision to deport the applicant in view of the contents of their letter of 16 April 1982.           The Home Office replied on 27 April 1982 stating that the applicant had failed to satisfy the Secretary of State that he had a well-founded fear of individual persecution on the grounds of his political opinions.   The letter noted that there were nearly three million Tamils in Sri Lanka, many of whom occupied positions of authority, and that for the most part the Tamil and Sinhalese communities lived peaceably together.   The letter also recorded that the main political parliamentary opposition party was the Tamil United Liberation Front (TULF) and that political involvement with the TULF would not constitute the basis for a valid claim to asylum in the United Kingdom, in view of the fact that the TULF was the officially recognised parliamentary opposition party in Sri Lanka.           The applicant points out that he had not contended that he was a member of the TULF, or involved with it.           On 27 April 1982 notice of the Secretary of State's decision to deport the applicant, together with directions for his removal to Sri Lanka were served on him in detention.   He immediately appealed against the direction that he be removed to Sri Lanka.   On 6 September 1982 the applicant was released from custody on bail in accordance with paragraph 29 of Schedule 2 to the 1971 Act, and remained on bail in accordance with that provision until the revocation of the deportation order on 10 February 1986.           On 14 July 1982 the Adjudicator dismissed the applicant's appeal against the making of directions for removal to Sri Lanka, finding that it was not open to the applicant to contend in the appeal that he ought not to be removed to Sri Lanka, because he feared persecution there.   The Adjudicator held, on the basis of Section 17 (1) of the 1971 Act, that the applicant's destination appeal could succeed only if he could show that there was a country or territory, other than Sri Lanka, to which he could and should be removed.           On 24 September 1982 the General Union of Eelam Students certified that the applicant was a member of that organisation and an active participant in its activities.   The applicant appealed from the Adjudicator to the Immigration Appeal Tribunal, which dismissed his appeal on 18 November 1982.    The applicant applied for judicial review of the Tribunal's determination, contending that the scope of a destination appeal included the opportunity to appeal against a destination on the grounds of a fear of prsecution at that destination.           On 14 October 1983 the High Court rejected the applicant's application for judicial review.   The judge held that it would be highly desirable if it were possible to construe the 1971 Act in such a way as to give persons in the position of the applicant a right to raise their claim to asylum before the appellate authorities.   The judge held that such a result would:           "certainly lead to a situation where it could clearly         be seen that this country, in relation to its appellate         code for dealing with immigrants, was observing its         international obligations (under the Geneva Convention         and New York Protocol relating to the Status of         Refugees and under the European Convention on Human         Rights) and, what is more, it would enable a matter of         very considerable importance in the world today to         be properly considered by an independent body, which         would result, in my view, in a situation which could         accord with what those responsible for the administration         of immigration legislation would like to see".   Nevertheless, he concluded that the clear language of the 1971 Act precluded such an opportunity.           The applicant appealed from this decision to the Court of Appeal, which dismissed the appeal on 16 July 1984.   The Court found the terms of the 1971 Act unambiguous and therefore declined to determine whether the 1971 Act was inconsistent with the Convention Relating to the Status of Refugees or the European Convention on Human Rights, since those instruments would be relevant only as an aid to the interpretation of the statute if it were ambiguous.           The applicant sought leave to appeal to the House of Lords, but on 8 November 1984 the judicial committee of the House of Lords refused leave to appeal.   Under normal circumstances, on the completion of the appeal process under domestic law, the applicant would have become liable to actual deportation following the judicial committee's decision of 8 November 1984.   However, the respondent Government have stated that, in view of a review of their policy, no Tamils who expressed fear of persecution in Sri Lanka were being removed there from the United Kingdom even if their applications for political asylum had been refused.   As a result of this policy review on 20 May 1985 the Government announced the granting of exceptional leave to remain for six months for Tamils in these circumstances.           The applicant did not apply for such leave but it was granted to him on 10 February 1986 and the deportation order made on 15 April 1982 was revoked.   Subsequently the applicant has been granted a further period of exceptional leave for twelve months, expiring on 10 August 1987.   The applicant's summary of the political situation in Sri Lanka           The applicant has made detailed submissions relating to the situation of Tamils in Sri Lanka, drawing upon various reports, including the report of the International Commission of Jurists "Ethnic Conflict and Violence in Sri Lanka" published in 1981, and the subsequent report by the same body "Sri Lanka, A Mounting Tragedy of Errors" published in March 1984, the Report of the United States Department of State on Human Rights Practices for 1983, published in 1984 and the summary statement of Amnesty International's current human rights concerns in Sri Lanka dated January 1984. Reference is also made to the conclusions of the Berlin Administrative Court in a decision of 19 April 1984, a report of the Swiss Federal Police and to reports in the national and international press.   These reports may be summarised as indicating a mounting pattern of civil unrest and disturbance.   This is traced from the election of the Sri Lanka Freedom Party in 1970, which implemented various measures which advanced the position of the Sinhalese population.   During this administration's tenure from 1970 to 1977 the new constitution, of 1972, came into force, which designated Sinhalese as the country's official language.   A quota system on the basis of race was imposed to regulate admissions to Sri Lanka, and Buddhism (the religion of the Sinhalese majority) was recognised as the official religion.   A number of Tamils who had recently emigrated from India to Sri Lanka at the time of independence (in 1948) were not granted citizenship of what was then Ceylon, and the Tamils' representation in the legislature was accordingly reduced.   The principal Tamil political party, the TULF, adopted a policy of separation of the Tamil areas from Sri Lanka and the creation of a separate State of Tamil Eelam, whilst denouncing the use of force.           A further response to the legislative measures and intermittent communal violence between the Sinhalese and Tamil populations was the banding together in 1977 of certain disaffected Tamil youths in a group called the Liberation Tigers of Tamil Eelam, explicitly committed to the establishment of a separate State by armed force.   Other, similar groups have subsequently been formed under different names and these groups are together collectively referred to as the Tamil Tigers.           Communal violence arose in August and September 1977 following the election of the present United National Party Government. However, it was four years later, in August 1981, that by far the most serious outbreak of communal violence arose, which led to the declaration of a state of emergency on 14 August 1981.   As a result of these disturbances at least ten Tamils had been killed, numerous Tamil shops and business burned and more than 5,000 Tamils had fled to refugee camps according to the report of the International Commission of Jurists referred to above.   It was within six months of these events that the applicant applied for asylum in the United Kingdom, which application was rejected on the basis that the Tamil and Sinhalese populations in Sri Lanka were living essentially harmoniously together.           Further, extreme, communal violence occurred between 24 July and 2 August 1983.   A state of emergency was declared on 18 May 1983, and was prolonged on 18 July 1983.   On 23 July 1983 13 soldiers were killed in an ambush by Tamil extremists, in reprisal for which members of the army went on the rampage and killed 51 civilians in Jaffna. On the following day, following the funeral of the 13 soldiers, Sinhalese riots against Tamils broke out in several parts of the country involving killings, assaults, arson and looting.   In response, the Government imposed a curfew in Colombo and in the Northern Province on 25 July 1983, and declared the following day a national holiday.   It also announced the imposition of the death penalty for looting and arson.           On 25 July 1983 37 Tamil prisoners were killed by Sinhalese co-prisoners in the high security Welikad Prison in Colombo.   Two days later 17 more Tamil prisoners were killed in the same prison before the security forces intervened.   The rioting extended to the cities of Kandy, Gampola and Trincomalee, where a group of 130 naval personnel went on the rampage, burning 175 Tamil houses, killing one Tamil and wounding ten others before returning to their barracks.           On 28 July 1983 the President announced the withdrawal of the civil rights of representatives of the separatist movement.   The overall extent of the damage resulting from the communal violence was considerable: according to official statements 371 people were killed, 18,000 houses, 1,100 stores and other buildings were destroyed by arson and 100,000 persons were rendered homeless.   On 25 August 1983 the German Embassy reported that 1,500 people had been killed and more than 2,300 stores and small workshops were destroyed.   Forty thousand people fled to the Tamil areas in the north of the island.   Tamil sources report 2,000 killed and estimate the number of refugees at 150,000.           The applicant points out that it was at the time of these disturbances that the Immigration Appeal Tribunal held that it was not open to the applicant to claim before the courts, as a matter of English law, that he had a well-founded fear of persecution in Sri Lanka, and should therefore not be removed there.           The Sri Lankan Government have stated that during the first few days of these disturbances the security forces did not intervene with sufficient energy and that some members of the security forces participated in the riots.           Relations between the population of Jaffna, the principal concentration of the Tamil population, and the security forces seriously deteriorated following the widespread burning of the market area of the town on the nights of 31 May and 1 June 1981.   Since that time there has been a massive deployment of the army on the Jaffna peninsula in an attempt to curtail the terrorist activities of the Tamil Tigers.   The problem has been accentuated by the fact that the great majority of both the police and army are Sinhalese who understand neither the language nor the culture of the Tamils.           The Sri Lankan Government's own admissions reveal that during this period of disturbances a total of at least 90 individuals were killed either by members of the State's own security forces or while in the State's custody.   The state of emergency proclaimed on 18 May 1983 for the stated purpose of preventing violence during Parliamentary by-elections is still in force.           According to a report of Amnesty International, published in December 1984, during the months of August, September and October 1984 several hundred Tamils were taken into army camps for questioning and were detained.   There are widespread reports of arbitrary arrest and detention, including the arrest and subsequent detention of the entire young male population of the village of Valvettiturai amounting to some 500 young men, of whom 350 were officially acknowledged to still be detained some three weeks later.           According to a recent report of the Swiss Federal Office of Police the wholesale arrest and detention in military bases of males aged 16 to 30 constitutes part of the policy of the Sri Lankan security forces against terrorism.   The same report expressed the view that the security forces are pursuing a policy of reprisals against civilians in areas in which Tamil extremists have shown themselves to be operating.   The report expressly concludes that it appeared that the security forces, and in particular the army, cannot always be kept under control.           According to international press reports on 13 August and 6 September 1984, official sources confirmed that troops went on the rampage in Mannar on 11 and 12 August 1984 killing five civilians.           During the last few months of 1984 there were further reports on attacks of members of the security forces, which gave rise to the announcement on 29 November 1984 by the Minister of National Security of the establishment of a "no man's land" extending 100 yards inland and 100 yards into the sea along an area stretching from Mannar on the north-west coast to Mullaittiavu on the north-east coast of the island.   The Jaffna district was also declared a security zone with a curfew from 4 pm. to 6 am. within which no one was allowed to own or use private vehicles or bicycles without special police permission and where householders would be required to submit the names of those staying in their houses to the police.   The Minister also announced the introduction of the concept of "collective responsibility" throughout the island, wherever explosions took place or where explosives were found.   All persons living in such an area would be liable to resettlement in another area, according to a report published in The Times on 30 November 1984.           On 2 December 1984 the curfew was extended to five other coastal areas following attacks by Tamil guerrillas on two fishing villages and has subsequently been imposed in other Tamil centres.   On 10 December 1984 the security zone was extended to cover both the eastern and western coastlines, extending for a distance of some 150 miles.           The Minister for National Security declared in early October 1984 that repatriated Tamils would, if necessary, be arrested at Colombo Airport.   The Swiss Government report confirms that the same procedure of arrest and detention which was applied to Tamils within the country applied to Tamils returning from abroad.   Amnesty International reported on 24 May 1985 that a young man deported from Switzerland after seeking asylum there, which was refused, was arrested on 3 October 1983 and detained without trial until 14 December 1984.           The Government of Sri Lanka have taken extraordinary powers to deal with advocates of independence in Tamil regions, by the sixth amendment to the Constitution which came into effect on 8 August 1983. The amendment imposes severe penalties for any person who directly or indirectly supports or otherwise assists or advocates the establishment of a separate State within the territory of Sri Lanka. Since the TULF was committed by its party conference resolution of 1976 to the establishment of an independent Tamil State, the immediate consequence of this amendment to the Constitution was that all TULF members of Parliament had to forfeit their seats.   The circumstances are to be contrasted with the statement of the Home Office in its letter of 27 May 1982 to the applicant's then solicitors that the TULF was the officially recognised opposition party in Sri Lanka.           Further, the Prevention of Terrorism (Temporary Provisions) Act was amended in 1982 and currently remains in force indefinitely. It provides the police with the power inter alia to order detention "anywhere and subject to any conditions, for periods up to 18 months (renewable every three months)" of anyone who is "reasonably suspected of being connected with or concerned in any unlawful activity".   The Act also provides for entry, search and seizure powers, prohibition orders concerning place of residence, employment or travel and other activities for a period of up to 18 months and restrictions on access to visits by the family and by lawyers.           Furthermore, emergency rule is carried on under the Emergency (Miscellaneous Provisions and Powers) Regulations made under the Public Security Ordinance.   The current state of emergency, which has been in force since 18 May 1983, allows the executive power to arrest and detain indefinitely, without charge or judicial review, those whom the Secretary to the Minister of Defence believes may act in a manner prejudicial to national security.   Several members of the United Nations' Human Rights Committee expressed concerns with various aspects of the Prevention of Terrorism Act and the Emergency Regulations during consideration of Sri Lanka's first report under the International Covenant on Civil and Political Rights in August 1983.   The law and practice of the United Kingdom as summarised by the applicant's representatives           Entry into the United Kingdom and the terms and conditions on which persons who are not British citizens may remain there are governed by the 1971 Act, together with the Rules made by the Secretary of State as to the practice to be followed in the implementation of the 1971 Act.   Section 4 of the 1971 Act gives the power to grant or refuse leave to enter the United Kingdom to immigration officers, and the power to give and vary leave to remain to the Home Secretary, and the officials in the Home Office.   Section 12 of the 1971 Act provides for adjudicators and the Immigration Appeal Tribunal which are competent in certain specified circumstances to entertain appeals against the refusal to grant leave to enter the United Kingdom (under Section 13), or against the refusal to vary conditions of admission (Section 14), or against the making of deportation orders (Section 15), or against the validity or content of directions for the removal of persons from the United Kingdom (Sections 16 and 17).   An appeal is to be allowed by an adjudicator (or on further appeal by the Immigration Appeal Tribunal) if the appellant establishes that the contested decision was not in accordance with the law or with any immigration rule applicable to the case, or that it involved the exercise of a discretion which should have been exercised differently (Section 19).           There are three distinct procedures established under the 1971 Act whereby a person subject to immigration control may be expelled from the United Kingdom.   The first is by means of a deportation order under Section 3 (5).   Such an order may be made in respect of someone who overstays the time-limit initially imposed, or otherwise breaks a condition attached to his leave to remain.   The second procedure is by means of a deportation order under Section 6 (3), following the recommendation of a court before which the person concerned has been convicted of an offence punishable with imprisonment.           The third procedure is by means of summary removal under paragraphs 8 and 9 of Schedule 2 of the 1971 Act, which authorise the removal of persons refused leave to enter and illegal entrants, which second category includes anyone who has entered the United Kingdom in breach of the immigration laws (Section 33).           Section 24 makes it an offence, punishable with imprisonment, for a person subject to immigration control to enter the United Kingdom without leave, or to remain in the United Kingdom beyond the time limited by the leave, or to fail to observe a condition of the leave.   Thus a person who fails to observe a condition of his leave to enter the United Kingdom may be deported in accordance with Section 3 (5) of the 1971 Act, without the intervention of any criminal court; alternatively, he may be prosecuted under Section 24 of the 1971 Act, recommended for deportation and then deported in accordance with Section 3 (6).   There is a right of appeal against a decision to make a deportation order under Section 3 (5), but no such right in respect of a deportation order under Section 3 (6).           Under the relevant provisions which applied at the time of the applicant's entry into the United Kingdom, his entry was permitted under paragraph 18 of the Statement of Immigration Rules for Control and Entry: Commonwealth Citizens, HC 79, 25 January 1973, paragraph 18.   When the applicant applied for a further extension of his leave to remain in the United Kingdom his position was governed by, inter alia, paragraphs 87, 88 and 120 of the Statement of Changes in Immigration Rules, HC 394, 20 February 1980.   Paragraph 88 provided that, in order to qualify for extension of leave to remain as a student, an applicant should produce evidence that he is able to maintain and accommodate himself without working.   It appears to have been under this provision that the applicant's request for an extension of his leave to remain in the United Kingdom was refused on 8 August 1980.           Paragraph 87 of the same rules provides that where a person is a refugee, full account should be taken of the Convention and Protocol Relating to the Status of Refugees, and paragraph 120 provided:           "A person may apply for asylum in the United Kingdom on the         ground that, if he were required to leave, he would have         to go to a country to which he is unwilling to go owing         to well-founded fears of being persecuted for reasons of         race, religion, nationality, membership of a particular         social group or political opinion ... "   It would therefore have been open to the applicant on that date to apply for asylum, but, in view of the prevailing situation in Sri Lanka at that time (prior to the eruption of violence against Tamils in August 1981), such an application would have been unlikely to be successful.           On 19 February 1982, when the applicant was convicted for remaining in the United Kingdom beyond the time permitted by his leave, he was recommended for deportation, at which time paragraph 150 of the same rules referred to above applied.   This stated that a deportation order would not be made in circumstances where an applicant could apply for asylum in the terms set out in paragraph 120 (above).   However, the Magistrates before whom his case came were not under a duty to consider the application of paragraph 150, in view of the principle established in Ali v.   Immigration Appeal Tribunal (<1973> Imm AR 33 at 35) where the then Master of the Rolls stated:           "In all these cases the proper person to consider a claim         to political asylum is the Home Secretary.   It is not a         matter for the court which recommends deportation."           Accordingly, although the applicant could appeal against the recommendation for deportation, it was not open to him to raise a claim to political asylum in the course of that appeal.   This was confirmed by the decision of the Court of Appeal in R v.   Nazari(<1980> 3 All ER 880 at 885 - 886) which held that:           "[T]he courts are not concerned with the political systems         which operate in other countries.   They may be harsh;         they may be soft; they may be oppressive; they may be         the quintessence of democracy ... it is for the Home Secretary         to decide in each case whether an offender's return to his         country of origin would make his compulsory return unduly         harsh ...   The sort of argument which was put up in Nazari's         case was one which we did not find attractive.   It may well         be that the regime in Iran at the present time is unlikely         to be favourable from his point of view ...           The final decision is for the Secretary of State.   No doubt         he will take into account the personal circumstances         of each person whose case he is considering, and that         will include the political situation in the country to         which he will have to go if an order of deportation is         made.   These are matters solely for the Secretary of State         and not for the court".           The applicant therefore abandoned his appeal against the recommendation that he be deported.   When on 24 February 1982 the applicant wrote to the Home Secretary asking for asylum, paragraph 150 of HC 394 applied.   However, the applicant had no right or opportunity to appeal against the Home Secretary's decision since the deportation order made against him was made on the basis of Section 3 (6) of the 1971 Act.   Although Section 15 (1)(a) thereof provides for a right of appeal against a decision to make a deportation order under Section 3 (5) of the 1971 Act, in the applicant's case the Secretary of State chose not to use the procedure created by Section 3 (5), but to use instead the alternative procedure whereunder the applicant had no right of appeal.           On 27 April 1982 when directions for the applicant's removal to Sri Lanka were served upon him, it was therefore not open to the applicant to rely on paragraph 150 HC 394 when appealing against those directions.   Section 17 of the 1971 Act provides that where directions are given for a person's removal from the United Kingdom, following the making of a deportation order, "he may appeal against the directions on the grounds that he ought to be removed (if at all) to a different country or territory specified by him".   As the Court of Appeal held in the present case, these words mean that there shall be an appeal as to the choice of destination, but that that appeal is without prejudice to the issue of whether there should be a deportation at all.           On 20 May 1985 the Home Secretary announced in Parliament a new policy to deal with Tamils seeking asylum in the United Kingdom. Any Sri Lankan Tamil who failed to qualify for leave to enter or remain under the Immigration Rules, but expressed a fear of returning to Sri Lanka was granted leave to remain on an exceptional basis if there was reason to believe that he would suffer severe hardship if returned to Sri Lanka.   Those who had been in the United Kingdom for six months and whose departure had not been enforced would be granted leave to remain for six months, whereupon their cases would be reviewed on the basis of the new policy.   Others would be granted 12 months' exceptional leave.   On 30 May 1985 the Immigration Rules were varied so that Sri Lankans could enter the United Kingdom only with visas.   On 4 June 1985 the Home Office, in implementation of the new policy, returned a Tamil to the Jaffna province of Sri Lanka.   The Home Secretary stated in Parliament that this deportation was as a result of a serious failure of communication by officials, since refugee agencies were not first given an opportunity to make representations on his behalf.     COMPLAINTS           The applicant first complains that the decision of the Home Secretary dated 15 April 1982 to direct that he be removed to Sri Lanka, together with the connected facts and circumstances, including the applicant's imprisonment, amount to a violation of Article 3 of the Convention, since the applicant was liable to be subjected to torture and serious ill-treatment in Sri Lanka if returned there.           Secondly the applicant maintains that the United Kingdom acted in breach of its obligations under the Convention in failing to afford him an effective remedy before a national authority against the Home Secretary's refusal to grant him asylum and against the decision to direct that he should be returned to Sri Lanka.   The applicant submits that this breach was made manifest in the decision of the adjudicator to refuse to consider, during the course of the applicant's appeal against the making of the directions for his removal to Sri Lanka, the strength of the applicant's claim that he would be subjected to torture or inhuman or degrading treatment if returned to Sri Lanka.           With regard to Article 3 of the Convention           The applicant contends that Article 3 of the Convention prohibits the compulsory return of an asylum seeker to a country in which there are serious reasons for believing that he will be subjected to treatment in violation of that provision.   It also prohibits the practice of detaining such an asylum seeker in prison, for breach of immigration law only, denying him asylum without the right to any effective remedy against that decision, and exposing him to continuing fear that he may at any time be returned forcibly to a country in which there are serious reasons for believing that he will be persecuted.           The applicant refers in this respect to the case-law of the Commission as well as to a variety of instruments adopted within the Council of Europe in relation to refugees including 11 Recommendations, two Resolutions and the Declaration on Territorial Asylum of 17 November 1977.           The Commission's case-law supports his contention in a series of decisions commencing with that in Application No. 984/61, X. v. Belgium, Dec. 29.5.61, Collection 6 p. 39 and culminating with Application No. 10308/83, Altun v. the Federal Republic of Germany, Dec. 3.5.83, D.R. 36 p. 209.   Furthermore, the Commission's case-law has been endorsed by numerous academic writers.           The applicant acknowledges that there is some support in the Commission's early case-law for the proposition that Article 3 is not infringed until an asylum seeker is actually removed to the territory in which he is liable to be persecuted (e.g.   Application No. 984/61 supra).   The applicant contends that the corollary of such reasoning would be that the Commission could only be potentially successfully petitioned by the applicant when the very event occurs which is liable to deprive him of any opportunity to make the application, or in which the application will cease to be of practical utility.   The applicant submits that the Commission's decision in Application No. 984/61 (supra) cannot be taken to imply that the Commission must remain inactive until the point arises at which its intervention becomes otiose.           The applicant invokes the Commission's power to intervene in this respect contained in Rule 36 of the Rules of Procedure, which the applicant relies upon.   The Commission itself has acknowledged, in a different context, that "if an individual claims that the execution of an expulsion measure taken against him may violate the Convention, a remedy without suspensive effect is ineffective" ( No.7465/76, Dec 29.9.76, D.R. 7 p. 153).   The applicant therefore submits that the Commission should exercise the power under Rule 36 of the Rules of Procedure to indicate to the United Kingdom that it is desirable to refrain from removing the applicant to Sri Lanka pending the final determination of this application or the grant of asylum to the applicant or until it is safe for the applicant to return to Sri Lanka, whichever occurs the sooner.           The Commission's power to review the conclusion reached by the Home Office that the applicant has failed to satisfy the Secretary of State that he has a well-founded fear of individual persecution remains to be examined.   The applicant submits that the present is a case where the competent authorities of the member States do not enjoy a margin of discretion in the determination of factual issues and their implications.   Furthermore, the Home Office decision was based upon little or none of the material which is now before the Commission, and hence cannot bind the Commission, in view of the Commission's obligations under Article 19 of the Convention "to ensure the observance of the engagements undertaken by the High Contracting Parties".           The Commission's case-law emphasises the objective nature of the test to be applied as to whether or not there are "serious reasons to believe" or "serious reasons of fearing" that the person concerned will be subjected to treatment in violation of Article 3, which is the terminology used by the Commission in its case-law.   The terminology emphasises the objective nature of the test to be applied.   This approach is further reflected in the Commission's practice to consider as relevant the opinions of the representative of the office of the United Nations High Commissioner for Refugees, as in Application Nos. 8581/79 and 6102/73 (not reported).           In the case of the present applicant, the office of the United Nations High Commissioner has supported the application to the United Kingdom authorities.    The representative in London of the United Nations High Commissioner participated in the proceedings before the Immigration Appeal Tribunal for the purpose of supporting the application there, although the Tribunal does not appear to have invited him or any other party to advance submissions on the merits of the applicant's claim.   The standpoint of the office of the United Nations High Commissioner for Refugees in general with regard to the return of Tamils to Sri Lanka was expressed in a statement issued to all Governments in May 1984, which concluded that the situation in Sri Lanka was so serious that Tamils could not, in principle, be returned unless it was established beyond doubt that an individual was opposed to returning solely for reasons of personal convenience.           The applicant's second submission is that the treatment which he has received in the United Kingdom following his request to be granted asylum has amounted to a violation of Article 3 of the Convention independently of any violation of the same Article which may arise by reason of his deportation to Sri Lanka.   To this end the applicant refers to the fact that following his request to be granted asylum he was kept in detention until 6 September 1982 (for a period of more than eight months) although the only offence of which he had been convicted was an offence under the 1971 Act for which he had been sentenced to imprisonment for fourteen days.   The applicant adds that on his release from prison he was denied an opportunity to take employment to support himself and continues to be denied any such opportunity, and that his application for asylum was denied even before he had time to submit a letter through his solicitor setting out the grounds of that application.   He also complains that the Home Office's response failed to deal with the points made on his behalf but referred to extraneous matters, and that he has been denied the opportunity to challenge that decision before an independent national authority and has lived under the threat of that decision to deport him, made in 1982, and the fear of its implementation at any instant, subject only to the exhaustion of his unsuccessful applications to the Englis