CEDH · CASELAW;REPORTS;ENG — 8 mai 1990

.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 }  Application Nos. 13163/87, 13164/87, 13165/87, 13447/87 and 13448/87   by Nadarajah VILVARAJAH, Vaithialingam SKANDARAJAH,   Saravamuthu SIVAKUMARAN, Vathanan NAVRATNASINGAM   and Vinnasithamby RASALINGAM   against the UNITED KINGDOM   REPORT OF THE COMMISSION   (adopted on 8 May 1990)                           TABLE OF CONTENTS                                                                  Pages   I.       INTRODUCTION         (paras. 1 - 17) ......................................    1-3           A.   The applications             (paras. 2 - 5) ...................................     1           B.   The proceedings             (paras. 6 - 12) ..................................    1-2           C.   The present Report             (paras. 13 - 17) .................................     3     II.      ESTABLISHMENT OF THE FACTS         (paras. 18 - 132) ....................................    4-33           A.   The particular circumstances of the cases             (paras. 18 - 105) ................................    4-25               a)   The first applicant                 (paras. 18 - 34) .............................    4-10               b)   The second applicant                 (paras. 35 - 50) .............................   10-13               c)   The third applicant                 (paras. 51 - 70) .............................   13-16               d)   The fourth applicant                 (paras. 71 - 86) .............................   16-20               e)   The fifth applicant                 (paras. 87 - 95) .............................   20-22               f)   The situation in Sri Lanka                 (paras. 96 - 100) ............................   22-24               g)   The applicants' subsequent appeals                 and their return to the United Kingdom                 (paras. 101 - 105) ...........................   24-25             B.   The relevant domestic law and practice             (paras. 106 - 132) ...............................   26-33               a)   Appeal rights of an asylum seeker under                 the Immigration Act 1971                 (paras. 106 - 112) ...........................   26-28               b)   Judicial review                 (paras. 113 - 121) ...........................   28-31               c)   The UKIAS referral service                 (paras. 122 - 123) ...........................    31               d)   Members of Parliament                 (para. 124) ..................................    31               e)   The decision making process in asylum cases                 (paras. 125 - 130) ...........................   31-33               f)   The law and practice in the case of refugees                 to whom the 1951 UN Refugee Convention does                 not apply                 (paras. 131 - 132) ...........................    33     III.     OPINION OF THE COMMISSION         (paras. 133 - 163) ...................................   34-42           A.   Points at issue             (para. 133) ......................................    34             B.   As regards Article 3 of the Convention             (paras. 134 - 144) ...............................   34-37               Conclusion             (para. 144) ......................................    37             C.   As regards Article 13 of the Convention             (paras. 145 - 161) ...............................   37-42               Conclusion             (para. 161) ......................................    42             D.   Recapitulation             (paras. 162 - 163) ...............................    42     Partly dissenting opinion of MM. Trechsel, Ermacora, Gözübüyük, Campinos, Mrs.   Thune, Mr.   Rozakis and Mrs.   Liddy, as regards the issue under Article 3 of the Convention ............................................    43   Further dissenting opinion of Mrs.   Liddy as regards the issue under Article 13 of the Convention .................    44       APPENDIX I :   History of the proceedings               before the Commission ..........................   45-46   APPENDIX II:   Decision of the Commission on the               admissibility of the applications ..............   47-75     I.       INTRODUCTION   1.       The following is an outline of the cases as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.       The applications   2.       The applications are brought by five citizens of Sri Lanka, of Tamil ethnic origin.   3.       The first applicant, Mr.   Nadarajah Vilvarajah, was born in 1960.   At the time of lodging his application he was detained at H.M. Detention Centre Latchmere, England, pending his removal to Sri Lanka.   The second applicant, Mr.   Vaithialingam Skandarajah, was born in 1958 and was detained in the same place as the first applicant awaiting removal when he lodged his application.   The third applicant, Mr.   Saravamuthu Sivakumaran, was born in 1966.   At the time of lodging his application he was temporarily resident in Morden, Surrey, whilst awaiting his removal to Sri Lanka.   The fourth applicant, Mr.   Vathanan Navratnasingam, was born in 1970.   When he lodged his application he was temporarily resident in Ilford, Essex, pending removal.   The fifth applicant, Mr.   Vinnasithamby Rasalingam, was born in 1961 and was temporarily resident in Southall, Middlesex, whilst awaiting removal to Sri Lanka when he lodged his application to the Commission.   4.       The applicants were represented before the Commission by Mr. D. Burgess and Mr.   C. Randall, both solicitors with Messrs. Winstanley-Burgess, solicitors, London, and by Mr.   N. Blake, Counsel. The respondent Government were represented by their Agent, Mr.   M. Wood, succeeded by Mr.   N. Parker, both of the Foreign and Commonwealth Office, Mr.   M. Baker, Counsel, Mr.   J. Eadie, Counsel, and Mr.   D. Seymour and Mr.   N. Sanderson, both of the Home Office.   5.       The applications concern the refusal of the applicants' requests for asylum in the United Kingdom and their removal to Sri Lanka where they alleged that, as young male Tamils, they had reasonable grounds to fear persecution, torture, arbitrary execution, or inhuman or degrading treatment.   The cases also concern the efficacy of remedies in the United Kingdom to determine the reasonableness of such claims.   They raise issues under Articles 3 and 13 of the Convention.   B.       The proceedings   6.       The first three applications were introduced on 26 August 1987 and registered on the same day.   They were presented with another application by a Tamil, No. 13162/87.   The latter had requested the Commission to intercede to stay his removal from the United Kingdom, pursuant to Rule 36 of the Commission's Rules of Procedure.   This was refused by the Acting President of the Commission on 26 August 1987, but that same day the Secretary to the Commission gave notice of all four applications to the respondent Government, pursuant to Rule 41 of the Rules of Procedure.   (Application No. 13162/87 was declared inadmissible on 9 November 1987.)   7.       Following the House of Lords' judgment of 16 December 1987, refusing judicial review of the Secretary of State's decision to remove the applicants, a further Rule 36 request concerning a stay of removal was made by the three applicants' representatives.   At the same time the fourth and fifth applications were introduced with the same Rule 36 request.   The Commission decided on 18 December 1987 not to make any Rule 36 indication in the circumstances of the five cases as presented to it.   8.       After a preliminary examination of the cases by the Rapporteur, the Commission considered the admissibility of the applications on 13 April 1988 and decided to request the parties' written observations on the admissibility and merits of the applications pursuant to Rule 42 para. 2(b) of its Rules of Procedure.   9.       The Government lodged their observations on 31 August 1988, after an extension of the time-limit fixed for their submission.   The applicants' representatives submitted observations in reply on 24 November 1988.   Legal aid had been granted to the second and fourth applicants by the President of the Commission on 11 November 1988.   10.      On 10 March 1989 the Commission adjourned its examination of the cases pending the decision of the adjudicator which was imminent (13 March 1989).   On 11 April 1989 the Commission joined the applications and decided to invite the parties to an oral hearing on admissibility and merits.   11.      The hearing was held on 7 July 1989 with the parties represented as above (para. 4).   Following the hearing and deliberations, the Commission declared the applications admissible. On 10 August 1989 the parties were sent the text of the Commission's decision on admissibility and they were invited to submit further written observations on the merits of the cases.   The Government submitted their observations on 6 October 1989, followed by the applicants on 11 October 1989.   12.      After declaring the cases admissible the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reactions the Commission now finds that there is no basis on which such a settlement can be effected.   C.       The present Report   13.      The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, the following members being present:                   MM.   C.A. NØRGAARD, President                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      G. BATLINER                      J. CAMPINOS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 M.    C.L. ROZAKIS                 Mrs.   J. LIDDY   14.      The text of this Report was adopted by the Commission on 8 May 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   15.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)    to establish the facts, and           2)    to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   16.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   17.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.      ESTABLISHMENT OF THE FACTS   A.       The particular circumstances of the cases           a)   The first applicant   18.      Before going to the United Kingdom the first applicant was an assistant in his father's shop at Paranthon, Kilinochchi District, Northern Province.   Kilinochchi is near Vavuniya, bordering on the Sinhala area.   The first applicant's district was under constant attack by the armed forces, which had established a camp there.   On several occasions the army had attacked, killed and destroyed people and property.   The first applicant's cousin, whilst working in the fields, was killed, together with five other men, by the army in 1986, and the family's shop was raided and damaged on 28 March 1987.   19.      The first applicant stated that he was detained twice by naval forces in March and April 1986 and assaulted.   On this first occasion he was driving a mini-bus, which broke down close to a naval base.   A naval patrol detained the first applicant and his passengers for 10 hours.   He claims to have been heavily beaten.   On the second occasion, whilst driving the mini-bus, he was stopped by a naval patrol and detained for 24 hours.   They accompanied the bus back to his home town of Karainagar where they opened fire at random on the people there. Fire was also exchanged between a Tamil separatist group, the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), and navy personnel, who used the bus passengers as shields.   20.      Young men like the first applicant were arrested by the army and disappeared.   Others were tortured and can no longer lead useful lives.   Many innocent people were killed by the State's armed forces. The State air force indiscriminately bombed the Tamil areas, helicopters shooting at those fleeing the air raids.   21.      During a major Sri Lankan army offensive to retake the Northern Province from the LTTE, the first applicant's family lost their shop and belongings and were at serious risk of losing their lives, particularly the first applicant, a young male Tamil. Accordingly his father sent him to Colombo in May 1987 where he arranged with an agent for the first applicant to be sent to London. The first applicant travelled on his own passport to Madras on 6 June 1987.   On 10 June 1987 he travelled with a Malaysian passport (provided by an agent in Madras) to London via Bombay.   He arrived in London on 11 June 1987 and sought entry to the United Kingdom as a visitor for two days, in transit to Montreal, Canada, where he said he was going for a holiday.   He was detained pending inquiries.   As he later admitted, he was not the rightful holder of the Malaysian passport in which his photograph had been substituted for that of its owner.   The first applicant was, therefore, refused leave to enter under paragraph 3 of the Statement of Changes in Immigration Rules which requires that persons seeking admission must produce a valid passport or other identity/nationality document.   On 12 June 1987 the first applicant requested asylum in the United Kingdom under the United Nations Convention of 1951 relating to the Status of Refugees, as amended by the Protocol of 1967 (hereafter referred to as the 1951 Refugee Convention).   22.      On 19 June 1987 the first applicant was interviewed by immigration officers in the Tamil language with the assistance of an interpreter.   He stated that it was unsafe for him to remain in Sri Lanka due to the Government's operations around Jaffna for the reasons outlined above.   The solicitors previously representing the first applicant made no representations to the Home Office on his behalf.   23.      In accordance with paragraph 73 of the Rules, the first applicant's asylum request was referred to the Refugee Section of the Immigration and Nationality Department of the Home Office.   However they concluded that the applicant had not shown that he had a well-founded fear of persecution for the purposes of the 1951 Refugee Convention.   This conclusion was endorsed by Home Office Ministers and, on 20 August 1987 (a Thursday), the Secretary of State for the Home Department refused the first applicant's request in the following terms:           "You have applied for asylum in the United Kingdom on the         grounds that you hold a well-founded fear of persecution         in Sri Lanka for reason of race, religion, nationality,         membership of a social group or political opinion.   You         said it was unsafe for you to remain in Sri Lanka due         to Government operations around Jaffna.   You also said         you had been detained on two occasions in March and April         1986 for 10 hours and 24 hours respectively and that on         28 March 1987 the army raided your family business.   But         it is noted that the incidents you have related were         random and part of the army's general activities directed         at discovering and dealing with Tamil extremists and that         they do not constitute evidence of persecution.           You have produced no other evidence in support of your         application for asylum.           The Secretary of State has considered the individual         circumstances of your case and in addition the situation         in Sri Lanka and has concluded that you have not         established a well-founded fear of persecution in Sri Lanka.           Accordingly your application for asylum is refused.   Since         you do not otherwise qualify to enter the United Kingdom,         the Immigration Service has been instructed to arrange for         your removal to Sri Lanka to which country you are         returnable under para. 10 of schedule 2 Immigration Act 1971."   24.      Since the first applicant did not otherwise qualify for leave to enter the United Kingdom under the Immigration Rules, arrangements for his removal to Sri Lanka were made for 22 August 1987 (the Saturday).   He instructed his present representatives, who are experienced in such cases, to apply to the High Court for judicial review of the Secretary of State's decision.   The solicitors had considerable difficulty obtaining instructions, given the delay which occurred in procuring the necessary permission from the Governor of HM Remand Centre, Latchmere, where the first applicant was detained, the latter's ignorance of English and the urgency of his situation.   They worked through Thursday night to prepare the necessary paper work, inevitably sketchy, for the Friday.   The case before the High Court was delayed so that Treasury Counsel could attend.   (Although such cases are usually argued initially by an applicant without the Home Office representative, Treasury Counsel, present, i.e. ex parte, the Home Office nowadays seeks to submit argument from the outset.)   The single judge refused the application.   A similar application to a single judge in the Court of Appeal was also unsuccessful.   By this time it was too late in the afternoon to make up a full Court of Appeal to hear further appeal arguments.   The Home Office refused to defer the first applicant's removal, scheduled the next day, to enable him to go before a full Court of Appeal on the Monday.   The first applicant's solicitors again worked through the night and submitted an application to the Duty Judge on Saturday morning at his home.   They alleged that the Home Office's refusal to delay removal unreasonably denied the first applicant's right to renew his application to the Court of Appeal.   The Judge accepted the argument and issued an injunction which was served by the solicitors at Heathrow Airport in the afternoon, thereby preventing removal.   On 26 August 1987 the Court of Appeal granted the first applicant leave to apply for judicial review of the Secretary of State's decision.   25.      On 24 September 1987 Mr.   Justice McCowan dismissed the application, but on 12 October 1987 the Court of Appeal quashed the refusal decision.   The Secretary of State successfully appealed to the House of Lords, which gave judgment on 16 December 1987.   The case before the House of Lords concerned the proper interpretation of Article 1A(2) of the 1951 Refugee Convention and the definition of a refugee as being a person who has "a well-founded fear of being persecuted" on various grounds.   The House of Lords held that the requirement that an applicant's fear of persecution should be well-founded means that there has to be demonstrated, on the basis of objective fact, a reasonable degree of likelihood, or a real and substantial risk, that he will be persecuted if returned to his own country.   26.      The House of Lords was satisfied that the Secretary of State had acted reasonably and objectively in assessing the Tamil situation in Sri Lanka and in assessing whether there existed for the first applicant any real risk of persecution for a reason specified in the 1951 Refugee Convention:           Lord Keith of Kinkel:   "The terms of <the Secretary         of State's> 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."           Lord Templeman:   "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 <Immigration> 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."           Lord Goff of Chieveley: "First, I respectfully agree with         my noble and learned friend Lord Keith, 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 the submission of counsel   for the Secretary         of State, 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 MR that different tests are applicable         under Art. 1 and Art. 33 of the Convention (see [1987] WLR         1047 at 1051).   Article 33 (1) provides as follows:              'No Contracting State shall expel or return ('refouler')             a refugee in any manner whatsoever to the frontiers             of territories where his life or freedom would             be threatened on account of his race, religion,             nationality, membership of a particular social             group or political opinion.'           Sir John Donaldson MR suggested that, even if the Secretary         of State decides that an applicant is a refugee as defined         in Art. 1, nevertheless he has then to decide whether         Art. 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 counsel for the         (United Nations High Commissioner for Refugees) with         reference to the travaux préparatoires, that the         non-refoulement provision in Art. 33 was intended to apply         to all persons determined to be refugees under Art. 1         of the Convention.   I cannot help feeling, however, that         the consistency between Arts. 1 and 33 can be more         easily accepted if the interpretation of well-founded fear         in Art. 1 (A)(2) espoused by the Secretary of State is         adopted rather than that contended for by the High Commissioner."   27.      After the judgment in the House of Lords had been handed down on 16 December 1987 the first applicant's solicitors wrote to the Home Office later that day indicating that they would be making further representations and that they would be applying to the Commission seeking an indication under Rule 36 of its Rules of Procedure.   They also sought the Home Office's confirmation that no steps would be taken against their client for 7 days, which confirmation was given. Representations were also made by the British Refugee Council and the United Kingdom Immigrants Advisory Service, even though neither body was responsible for the case work concerned.   Representations were also made by a Member of Parliament at the request of the Tamil Action Committee U.K.   The Secretary of State took the view that asylum candidates who failed to qualify for refugee status should be returned to Sri Lanka unless there were strong compassionate circumstances in any particular case.   In the applicant's case he did not consider that such compassionate circumstances existed.   28.      The first applicant was returned to Sri Lanka on 10 February 1988.   He was escorted by police officers, the Sri Lankan authorities having been forewarned.   His name was published in Sri Lankan newspapers.   He was interviewed briefly on arrival by Sri Lankan immigration authorities at the airport.   A member of the British High Commission was also present at the airport on arrival.   The removal expenses were paid by the Home Office and the first applicant had funds in excess of £100.   29.      After the first applicant's return to Sri Lanka an appeal was lodged in the United Kingdom by his solicitors on his behalf against the refusal of asylum.   They went to Colombo to interview and take statements from him.   He confirmed that thanks to the publicity surrounding his case and the presence of the member of the British High Commission he was given little trouble at the airport.   He stated that he was questioned for about three hours by the Sri Lankan police as to whether he had connections with Tamil separatist groups like the People's Liberation Organisation of Tamil Eelam (PLOTE) and the LTTE, which he denied.   The police noted his address and took his fingerprints.   30.      The first applicant stated that he returned to his native village to avoid the Sri Lankan authorities and denunciation in Colombo by the PLOTE with whom the applicant had been associated, in fact, but who were now cooperating with the Indian Peace Keeping Forces (IPKF) in identifying their former members and alleged LTTE members.   31.      He also said that two weeks after his return he was denounced to the IPKF and summoned to the local Chief Officer's Office.   He was accused of connections with the LTTE and became frightened.   However he was allowed to return home after questioning.   The first applicant found the security situation arbitrary and he was afraid to leave his home.   On a visit to Jaffna in April 1988 he was rounded up with other Tamils and kept 10 hours by the IPKF.   They were paraded in front of masked men who identified certain people.   The first applicant was afraid they would make an error, but he was not detained.   People so detained have been beaten and tortured and on release have "disappeared".   Certain other Tamil groups were cooperating with the IPKF, some for vengeful reasons.   According to the first applicant, the IPKF were unpopular, although many Tamils felt marginally safer with them than with the prospect of the Sri Lankan army returning.   32.      The first applicant recounted other incidents which lead him to fear IPKF ill-treatment because of his earlier involvement with the PLOTE and the IPKF's arbitrary manner of dealing with Tamils.   When he went to Colombo to see his solicitors he had to go through about 13 frightening IPKF checkpoints and three other Sri Lankan checkpoints, doubling the length of the normal 8 hours journey.   33.      He submitted evidence to the Commission from, inter alia, an expert in Sri Lankan affairs, Professor J.G. Manor, who described the situation in Sri Lanka in August 1987 as unstable despite the peace Accord signed between Sri Lanka and India in late July 1987.   In December 1987 a special representative of the World Council of Churches, Mr.   G. Jackson, had found after visiting Sri Lanka for a month that the Tamil areas remained inaccessible, subject to guerilla attack, with a shortage of food, accommodation, transport and medical care.   He had however noticed a slow easing of conditions in the north of the island since the beginning of November 1987.   Amnesty International (17 December 1987) and the United Nations High Commissioner for Refugees (17 December 1987) recommended that Tamil asylum seekers in the United Kingdom should not be removed back to Sri Lanka because of continued instability and fighting in northern and eastern Sri Lanka between Tamil militants and the IPKF.   34.      This evidence and all other relevant material was put before the adjudicator, the first instance of immigration appeal in the United Kingdom.   On 13 March 1989 he found in the first applicant's favour and the latter was subsequently allowed to return to the United Kingdom on 4 October 1989 (paras. 101-105 below).   He has been granted exceptional leave to remain for 12 months.           b)   The second applicant   35.      The second applicant comes from Jaffna in the north of Sri Lanka, an area which had been controlled by the LTTE when he was living there.   He says that in 1985 the Sri Lankan army staged a reign of terror.   People could not go out in the street.   Young men were arrested without reason; some were tortured or "disappeared" or were shot on sight.   Everyone was suspected of being a Tamil separatist and lived in fear.   When the army conducted searches the second applicant and his family hid in trenches.   His house was searched regularly until 1985.   It was destroyed in 1986.   The family had to go for days without food and starved because it was dangerous to go out to fetch it.   The army's daily bombing of the Tamil area was indiscriminate, without concern for human life.   It was the bombing and damage to his home and business on 24 April 1987 which made him decide to leave.   He claims to have been questioned by the police about the LTTE, although he has never belonged to them.   36.      The second applicant left Jaffna having lost all his possessions apart from 150,000 rupees.   He went to Colombo where he was arrested by the police on 2 May 1987 at his uncle's home.   He states that he was held for 20 hours and tortured, resulting in injury and scarring to his right leg.   He claims that he was deliberately injured with barbed wire and that he was released in a dazed and dying state.   37.      An agent, instructed by the second applicant's father, arranged for his flight to an unknown destination.   On 6 June 1987 he travelled by a scheduled service of Indian Airways from Colombo to Madras on his own Sri Lankan passport issued in Colombo in December 1986.   On 10 June 1987 he then travelled with a Malaysian passport via Bombay to London.   There he sought entry as a visitor for two days in transit for Montreal, Canada.   The second applicant was travelling on a Malaysian passport in the name of Srirengan Rengasamy.   As he later admitted, he was not the rightful holder of the document, his photograph having been substituted for the original.   38.      He stated that his own Sri Lankan passport had been obtained through normal channels, but it had been retained by his travel agent in Madras.   The Malaysian passport had been obtained from the same agent in Madras at a cost of 100,000 rupees (which had been paid for before leaving Colombo) and which included the cost of the airline ticket.   39.      The second applicant was refused leave to enter by the United Kingdom immigration authorities on 12 June 1987 under paragraph 3 of the Statement of Changes in Immigration Rules, which requires the production of a valid identity/nationality document.   Arrangements were made for his removal back to Sri Lanka on a 22.00 h flight. However, before the flight he revealed his Sri Lankan nationality and requested asylum.   His removal was, therefore, postponed.   40.      On 17 June 1987 he was interviewed about his asylum application in the Tamil language with the assistance of an interpreter.   During the three hour interview, the second applicant explained his fear of persecution if returned to Sri Lanka as outlined above.   41.      In accordance with paragraph 73 of the aforementioned Immigration Rules, the matter was referred to the Refugee Section of the Home Office.   They concluded that the second applicant had not demonstrated that he had a well-founded fear of persecution for the purposes of the 1951 Refugee Convention.   Details of the case were referred to Ministers in the Home Office, who reached a similar conclusion.   Accordingly, on 20 August 1987 a refusal notice was served on the second applicant, who had remained in detention pending consideration of his case.   42.      The Secretary of State's refusal of the second applicant's asylum request was in the following terms:           "You have applied for asylum in the United Kingdom on the         grounds that you hold a well-founded fear of persecution         in Sri Lanka for reason of race, religion, nationality,         membership of a social group or political opinion.   The         Secretary of State has considered your application.   You         said it was unsafe for you to return to Sri Lanka because         of the Government operation around Jaffna.   You stated that         your house and business pr