CEDH · CASELAW;REPORTS;ENG — 27 juin 1995

.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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 22414/93                          The Chahal Family                               against                         the United Kingdom                      REPORT OF THE COMMISSION                      (adopted on 27 June 1995)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-4). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 5-14) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 15-19). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 20-78) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 20-47). . . . . . . . . . . . . . . . . . .4        B.    The relevant domestic law           (paras. 48-61). . . . . . . . . . . . . . . . . . .9        C.    The Indian background to the present case,           as described by the Government           (paras. 62-65). . . . . . . . . . . . . . . . . . 11        D.    The effects of Sikh extremism outside India           and particularly in the United Kingdom,           as described by the Government               (paras. 66-69). . . . . . . . . . . . . . . . . . 12        E.    The Government's case of the first applicant's           involvement in Sikh extremism and terrorism           (paras. 70-71). . . . . . . . . . . . . . . . . . 13        F.    The first applicant's response to the           Government's allegations           (paras. 72-78). . . . . . . . . . . . . . . . . . 14   III. OPINION OF THE COMMISSION      (paras. 79-158). . . . . . . . . . . . . . . . . . . . 17        A.    Complaints declared admissible           (paras. 79-80). . . . . . . . . . . . . . . . . . 17        B.    Points at issue           (para. 81). . . . . . . . . . . . . . . . . . . . 17                          TABLE OF CONTENTS                                                             Page        C.    As regards Article 3 of the Convention           (paras. 82-115) . . . . . . . . . . . . . . . . . 17             Conclusion           (para. 115) . . . . . . . . . . . . . . . . . . . 25        D.    As regards Article 5 para. 1 of the Convention           (paras. 116-123). . . . . . . . . . . . . . . . . 25             Conclusion           (para. 123) . . . . . . . . . . . . . . . . . . . 27        E.    As regards Article 5 para. 4 of the Convention           (paras. 124-129). . . . . . . . . . . . . . . . . 27             Conclusion           (para. 129) . . . . . . . . . . . . . . . . . . . 28        F.    As regards Article 8 of the Convention           (paras. 130-140). . . . . . . . . . . . . . . . . 28             Conclusion           (para. 140) . . . . . . . . . . . . . . . . . . . 29        G.    As regards Article 13 of the Convention           (paras. 141-153). . . . . . . . . . . . . . . . . 30             Conclusion           (para. 153) . . . . . . . . . . . . . . . . . . . 31        H.    Recapitulation           (paras. 154-158). . . . . . . . . . . . . . . . . 31   PARTIALLY DISSENTING OPINION OF MR. TRECHSEL. . . . . . . . 33   APPENDIX I    : HISTORY OF THE PROCEEDINGS . . . . . . . . . 34   APPENDIX II   : DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 35     I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.    The application   2.    The first applicant, Karamjit Chahal, is an Indian citizen, born in 1948, and presently detained for deportation purposes in H.M. Prison Bedford.   The second applicant, Darshan Kaur Chahal, his wife, is an Indian citizen, who was born in 1956.   She resides in Luton with the two children of the family, a daughter called Kiranpreet Kaur Chahal, the third applicant, born in 1977, and a son called Bikaramjit Singh Chahal, the fourth applicant, born in 1978.   By virtue of their birth in the United Kingdom, the two children have British nationality.   The applicants were represented before the Commission by Mr. D. Burgess, Solicitor, Messrs. Winstanley-Burgess, Solicitors, London.   3.    The application is directed against the United Kingdom.   The respondent Government were represented by their Agent, Mr. I. Christie.   4.    The case concerns the proposed deportation of the first applicant, an Indian Sikh militant, from the United Kingdom on national security grounds.   He has been detained for nearly five years pending the enforcement of the deportation order and the outcome of the domestic and Strasbourg proceedings.   The first applicant invokes Article 3, Article 5 paras. 1 and 4, Article 8 and Article 13 of the Convention.   (A complaint he originally made under Article 6 para. 1 of the Convention concerning the fairness of certain remedies was declared inadmissible by the Commission on 1 September 1994; see Appendix II to this Report.) The other applicants invoke Articles 8 and 13 of the Convention.   B.    The proceedings   5.    The application was introduced on 27 July 1993 and registered on 4 August 1993.   6.    On 30 July 1993 the Commission was requested to indicate a stay of the first applicant's deportation under Rule 36 of the Commission's Rules of Procedure. This request was notified to the Government of the United Kingdom.   7.    On 2 August 1993 the Government informed the Commission that the Home Office had no immediate plans to deport the first applicant whilst proceedings were still pending.   They undertook to provide the Commission with at least two weeks' notice of any intended deportation of the applicant.   8.    On 8 September 1993 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to communicate the application to the respondent Government and to invite the parties to submit their written observations on admissibility and merits.   9.    The Government's observations were submitted, after an extension of the time-limit set for this purpose, on 23 December 1993.   The applicants' observations were submitted, after two extensions of the time-limit, on 7 April 1994.   10.   On 16 May 1994 the Commission decided to invite the parties to make oral submissions at a hearing, which was fixed for 1 September 1994.   The President of the Commission granted the applicants legal aid on 22 July 1994.   Prior to the hearing the parties submitted additional documents: the Government submitted various press cuttings on 17 August 1994, and on 23 August 1994 the applicants submitted a decision of an Immigration Appeal Tribunal.   11.   At the hearing on 1 September 1994 the Government were represented by Mr. I. Christie, Agent, Foreign and Commonwealth Office, Mr. M. Beloff, QC, Counsel, Mr. R. Jay, Counsel, Miss T. Callman, Counsel, and MM. D. Seymour, D. Cooke, and A. Cunningham, Advisers. The applicants were represented by Mr. N. Blake, QC, Counsel, Mr. D. Burgess, Solicitor, Messrs. Winstanley-Burgess.   The second, third and fourth applicants also attended the hearing.   12.   On 1 September 1994 the Commission declared inadmissible the first applicant's complaint under Article 6 of the Convention about the fairness of remedies.   It declared the remainder of the application admissible.   13.   The text of the Commission's decision on admissibility was sent to the parties on 12 September 1994 and they were invited to submit such further information or observations on the merits as they wished. The applicants submitted further evidence and additional observations on 28 October 1994. After two extensions of the time-limit, the Government also submitted further evidence and additional observations on 23 December 1994. In view of the new information contained in the latter materials, the applicants submitted comments, after an extension of the time-limit, on 31 March 1995.   14.   After declaring the case 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' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   15.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:        MM.   C.A. NØRGAARD, President           C.L. ROZAKIS           E. BUSUTTIL           G. JÖRUNDSSON           S. TRECHSEL           A.S. GÖZÜBÜYÜK           H.G. SCHERMERS      MM.   F. MARTINEZ      Mrs. J. LIDDY      MM.   J.-C. GEUS           M.P. PELLONPÄÄ           B. MARXER           M.A. NOWICKI           I. CABRAL BARRETO           B. CONFORTI           N. BRATZA           D. SVÁBY   16.   The text of this Report was adopted on 27 June 1995 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17.   The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   18.   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 as Appendix II.   19.   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 case   20.   The first applicant entered the United Kingdom in 1971 without seeking leave to do so from British immigration authorities.   In 1974 he applied to the Home Office to regularise his stay and on 10 December 1974 was granted indefinite leave to remain under the terms of an amnesty for illegal entrants who arrived before 1 January 1973.   21.   The second applicant settled in the United Kingdom in 1975 and the third and fourth applicants have been resident there since their birth.   22.   From 1 January to 27 May 1984 the first applicant was in India and whilst there met prominent Sikh religious and political leaders. Since 1984 the applicant has propagated a belief in a purer form of Sikh religious practices and supported the movement for a Sikh independent homeland (Khalistan).   He has been a prominent religious figure in the affairs of British Sikhs since 1984, a member of the governing committees of a number of Sikh temples (gurdwaras) and has toured the United Kingdom with other militants, baptising and counselling Sikhs.   He has supported the International Sikh Youth Federation (ISYF), which in turn supports the All Indian Sikh Student Federation.   23.   The first applicant has been arrested by the British police in connection with his activities and associates in the United Kingdom. He has twice been charged with criminal offences of a violent order relating to disputes in the affairs of two gurdwaras.   He has been acquitted by a jury in one case.   The other case resulted in his conviction in May 1987, but it was quashed by the Court of Appeal on 27 July 1992 after the applicant had served the nine month prison sentence which had been imposed at first instance.   He has never been charged with offences relating to conspiracy to injure or kill, or with similar offences, whether in the United Kingdom or India, despite the provisions of British criminal law that enable agreements to commit violence in India to be prosecuted in the United Kingdom if the agreement is intended in part to be executed in the United Kingdom.   24.   A request by the first applicant for British nationality was refused on 4 April 1989.   25.   On 14 August 1990 the Home Secretary decided that the first applicant should be deported from the United Kingdom because his continued presence there was deemed unconducive to the public good for reasons of national security and other reasons of a political nature, namely the international fight against terrorism.   A notice was issued to this effect. On 16 August 1990 the first applicant was detained for deportation purposes and has remained in custody since, pursuant to para. 2 (2) of Schedule III of the Immigration Act 1971.   26.   The first applicant applied for political asylum, claiming to be a victim of threatened torture and persecution in India on the following basis:        a)    his personal experiences in India between January and      May 1984, during which time it is accepted that he was detained      for over three weeks and tortured by a number of Indian police      officers in two different police stations;        b)    the consistent evidence of a real risk of torture, murder,      and detention at the hands of the Indian authorities,      particularly the police, faced by those who either are, or are      perceived to be, Sikh militants and adherents to the cause of a      Sikh state in India.   The evidence extends throughout the period      1984 to 1992 and is continuing. It is most comprehensively      expressed in the reports of Amnesty International, their letters      to the Secretary of State in the present case, the evidence of      other experts, and the evidence relied on by the Home Office,      namely a report prepared by the British Foreign Office;        c)    the evidence of a certain Kharnail Singh Khaira, who      visited India in 1989, was detained and tortured there after      visiting the first applicant's relatives, and was questioned      about the applicant by his torturers;        d)    evidence relating to the fate of other relatives or      acquaintances of the first applicant, eg. the deaths at the hands      of the police of his cousin's son-in-law (1983), his cousin's son      (October 1989), a relative by marriage (February 1990), and his      second cousin (March 1990), and the arrest and torture of his      sister, brother-in-law and two nephews (October 1989), by the      police;        e)    the arrest and detention, with or without charge, of the      family and acquaintances of the first applicant on suspicion of      supporting Sikh separatist militants, many of whom, including his      parents, having been tortured and questioned about the first      applicant;        f)    the accounts given by the first applicant's village headman      and family in India as to the interest in the applicant shown by      the security forces;        g)    the interest in the first applicant's proposed expulsion      from the United Kingdom on national security grounds and his Sikh      militancy expressed by the national press in India, including      misrepresentations as to the extent of and reasons for the police      interest in the applicant in India;        h)    the circulation by the Indian national press and some pro-      government agency in the United Kingdom (which the applicants      believe to be the Indian High Commission) of inaccurate      speculation purporting to come from an identified British senior      police officer that the first applicant had been found in      possession of explosives and had targeted prominent Sikhs in the      United Kingdom;        i)    a warning on behalf of the Canadian police, given to the      first applicant before the deportation proceedings began, that      he was in danger in India;        j)    the fact that the first applicant's former associate,      Jasbir Singh Rode, was detained without trial or charge for four      years upon his expulsion to India;        k)    evidence relating to the general events in the Punjab, the      scale of the problems, the inadequacy of the response of the      authorities or their inability to respond;        l)    the decisions of judicial authorities in the United Kingdom      and elsewhere considering the application of the relevant legal      criteria of risk of persecution to credible accounts of fears of      persecution given by Sikh militants with respect to their      treatment in India.   27.   On 27 March 1991 the Home Secretary refused the first applicant's request for asylum. Given the national security elements in the case, the first applicant had no right of appeal to an independent tribunal against the Home Secretary's notice of intention to deport him. However, the matter was considered by an advisory panel on 10 July 1991.   28.   The Home Secretary expressed the following views about the first applicant throughout the domestic proceedings:        a)    the first applicant has a public history of violent           involvement in Sikh terrorism, including involvement in the           financing of terrorism in India by the supply of money and           equipment to terrorists in the Punjab since 1985, which           equipment has been used for actual terrorist operations;        b)    he has been involved in the planning and directing of           terrorist attacks in India, the United Kingdom and           elsewhere; and        c)    in his leading role in a faction of the ISYF, he was           involved in that faction's programme of intimidation           directed against members of other groups within the United           Kingdom Sikh community.   29.   The applicant was not informed of the basis for these views which were put to the advisory panel. He was not allowed to be represented by a lawyer and he was not informed of the advice which the panel gave to the Home Secretary. The latter subsequently signed a deportation order against the first applicant on 25 July 1991.   30.   The applicant sought judicial review of the Home Secretary's decision. Leave was granted by the High Court on 2 September 1991 and the asylum refusal quashed on 2 December 1991 because the reasoning behind it was considered inadequate. Mr. Justice Popplewell expressed "enormous anxiety" about the case.   31.   After further consideration of the first applicant's situation, the Home Secretary adhered to his previous decision (renewed decision 1 June 1992).   32.   Part of the first applicant's case was based on reports by Amnesty International and other material showing that a great number of Sikhs have been persecuted in India. Amnesty International, convinced that the first applicant, if sent to India against his will, would be at risk of torture, "disappearance" or extrajudicial execution, made representations about the present case to the Home Secretary. The latter examined Amnesty's documentation, but stated,        "... that the emergency powers in force in the Punjab, including      the Terrorist and Disruptive Activities Act 1985 (TADA), are      lawful powers, properly enacted by the Indian Parliament, which      have been instituted in response to the very serious threat to      the life and safety of the community posed by the activities of      Sikh terrorists in the Punjab.   He (noted) that the judiciary in      India is independent of the Government and that there is an      effective system of appeals in criminal matters ranging from      District Courts to the Supreme Court."   33.   Concerning human rights violations by the Indian security forces in the Punjab, the Home Secretary commented as follows:        "... he considers that these actions arise from failures of      discipline and supervision and not from any concerted policy on      the part of the Indian authorities.   Moreover, he considers that      the breakdown of law and order of which these violations are a      part results directly from the activities of Sikh terrorists and      in particular their strategy of intimidation and provocation of      members of the security forces.   He does not accept that they are      evidence of persecution within the terms of the UN Refugee      Convention against Sikhs generally in the Punjab, nor against      supporters of an independent Sikh homeland, nor against alleged      Sikh terrorists ... [he] notes that these violations have not      been condoned by the Indian or state Governments ...".   34.   The Home Secretary also examined what might happen to the first applicant on his return to India. He accepted that the first applicant might be arrested and charged with terrorist offences in India, under the TADA or other provisions of Indian criminal law.   However, were he to be charged, the Secretary of State believed that he would be subject to prosecution for alleged criminal activities, not for his political beliefs or expressions, and that he would receive full protection by the Indian Government from mistreatment while held in custody.   35.   If the first applicant were not arrested by the Indian authorities, the Home Secretary accepted that he or indeed any other person visiting or living in the Punjab at that time faced some risk of violence, both from being caught up in a terrorist outrage or from the activities of members of the security forces acting outside the law. However, the Home Secretary did not regard this as persecution within the meaning of the 1951 United Nations Convention on the Status of Refugees.   He noted that Sikhs live safely in most parts of India outside the Punjab and that the first applicant was not obliged to return to the Punjab itself. He would be returned to any international airport of his choice within India.   36.   In a letter of 18 June 1992, the applicants' solicitors stated that the first applicant did not regard a location in India outside the Punjab as an area in which he would not face a real risk of persecution for a Refugee Convention reason.   Furthermore he did not regard any point of re-entry to India as safe for him.   37.   In his reply by letter of 2 July 1992, the Home Secretary reiterated that the first applicant would be deported to any international airport of his choice within India and informed the solicitors that he had        "... sought and received assurances from the Indian Government      a copy of which is attached and which further satisfy him as to      this matter.   The Secretary of State therefore remains of the      view that Mr. Chahal would be safe from ill-treatment if taken      into custody by the Indian authorities wherever he might be held      in custody."   38.   The assurances mentioned are contained in a letter dated 29 June 1992 from the Indian High Commission to the Under-Secretary of State at the Foreign Office:        "... if Mr. Chahal were to be deported to India, he would enjoy      the same legal protection as any other Indian citizen, and ...      he would have no reason to expect to suffer ill-treatment of any      kind at the hands of the Indian authorities."   39.   Subsequent to this correspondence, further material (in particular from Amnesty International) was made available to the Home Secretary.   In response he stated that he did not substantially dispute Amnesty's reports insofar as they related in a limited way to the general situation in the Punjab, but he commented that he did not accept that the material used in the compilation of these reports was necessarily independent or objective.   Nor did he draw the same inferences as the applicants' solicitors from those reports.   40.   The quashing of the first applicant's conviction by the Court of Appeal on 27 July 1992 did not significantly change the Home Secretary's evaluation of the substantial security risk posed by the first applicant. Because of this assessment, he also considered that the first applicant could not benefit from the protection of Articles 32(1) and 33 of the United Nations Refugee Convention even if he had had a satisfactory claim to refugee status.   41.   The first applicant applied for judicial review to challenge the Home Secretary's second refusal of asylum and the maintenance of the deportation decision. He also applied for bail, which was refused on 23 July 1992.   42.   On 12 February 1993 the judicial review application and a renewed bail request were refused, the High Court holding that the Home Secretary's decisions had not been irrational. A renewed application for judicial review to the Court of Appeal was heard on 28 July 1993 and dismissed on 22 October 1993.   43.   The Court of Appeal noted that, whilst it had before it massive evidence as to whether the life or freedom of the first applicant would be threatened if he were returned to India, it did not have the evidence on which the Home Secretary considered the applicant to be a risk to national security. So the Court could not balance the threat on the one hand against the risk on the other. Its function was to consider the first applicant's evidence regarding the threat to his life and to examine whether the Home Secretary's decision on grounds of national security was irrational, perverse or based on a misdirection. It was also required to examine whether there was sufficient evidence that the Home Secretary balanced the gravity of the national security risk against all other circumstances, including the likely risk of persecution if the person were deported. The Court pointed out that the scrutiny of the claim that a person should be deported in the interests of national security may in practice be defective or incomplete if all the relevant facts are not before the it. Furthermore, even when the relevant facts are before the Court, it is not empowered to carry out its own assessment of the respective risks.     44.   As to the particular facts of the case, one member of the Court of Appeal considered that much of the evidence about the first applicant's past was second-hand, or even more remote, and could in part be said to be evidence of impression rather than fact. Another judge considered that there was a clear case to consider that the first applicant had a well-founded fear of being persecuted, within the meaning of Article 1 of the 1951 Convention on the Status of Refugees, if returned to India. It was deemed irrelevant that some of the victims of police violence in India were guilty of terrorist acts. The possibility that the first applicant would suffer unauthorised ill- treatment in the hands of Indian security forces was left open.   45.   Nevertheless, the Court of Appeal was impressed by the assurance given by the Indian Government that the first applicant's rights would be protected on return to India. The Court was informed that such assurances are seldom sought or given.   46.   The Court thus held that it had power to examine the grounds on which a deportation order was made, even where the interests of national security are relied upon, although in practice its scrutiny is limited. As regards the facts of the present case, the Court concluded that the grounds of national security could not be challenged and there was sufficient evidence that the Home Secretary had carried out the necessary balancing exercise.   47.   The first applicant's petition to the House of Lords for leave to appeal was rejected on 2 March 1994.   B.    The relevant domestic law   48.   By section 3(5)(b) of the Immigration Act 1973 ("the Act"), the Home Secretary has the power to deport persons who are not British citizens, including those such as the first applicant who have indefinite leave to remain in the United Kingdom, on the ground that their deportation is conducive to the public good.   The first applicant was granted indefinite leave to remain in the United Kingdom on 10 November 1974, but he had arrived there clandestinely in 1971 and is not able to benefit from the immunity accorded to Commonwealth citizens ordinarily resident in the United Kingdom on 1 January 1973 as bestowed by section 7 of the Act.   49.   By section 15(1) of the Act, there is a right of appeal to an independent tribunal against a decision to deport, but by section 15(3):        "A person shall not be entitled to appeal against a decision to      make a Deportation Order against him if the ground of the      decision was that his deportation is conducive to the public good      as being in the interests of national security or of the      relations between the United Kingdom and any other country or for      other reasons of a political nature."   50.   This exception was maintained in the Asylum and Immigration Appeals Act 1993, which came into force in July 1993.   It provides a right of appeal to an independent adjudicator in all but national security cases where expulsion would be contrary to the United Kingdom's obligations under the 1951 Convention on the Status of Refugees.   51.   The first applicant's case was considered by a non-statutory advisory panel (presided over by a Lord Justice of Appeal, now a Law Lord) instituted in 1971 for national security cases of this type.   The existence of this procedure is vouchsafed by paragraph 157 of the Statement of Changes in Immigration Rules (House of Commons Paper 251).   52.   By paragraphs 161 and 173 of the Home Secretary's current Rules governing immigration control and practice in the United Kingdom (HC 251), deportation orders may not be made in breach of the United Kingdom's obligations under the 1951 Convention and Protocol Relating to the Status of Refugees.   53.   The relevant Articles of the Refugee Convention are Articles 32 and 33. Article 33 provides:        "1. No contracting state shall expel or return a refugee in any      manner whatsoever to the frontiers of territories where his life      or freedom would be threatened on account of his race, religion,      nationality, membership of a particular social group or political      opinion.        2. The benefit of the present provision may not, however, be      claimed by a refugee whom there are reasonable grounds for      regarding as a danger to the security of the country in which he      is, or who, having been convicted by a final judgment of a      particularly serious crime, constitutes a danger to the community      of that country."   54.   The first applicant was detained following the service on him of the Home Secretary's notice of intention to deport. The power to detain, pending the making of an order, derives from paragraph 2(2) of Schedule III to the Act, which reads as follows:        "Where notice has been given to a person in accordance with      Regulations under Section 18 of this Act of a decision to make      a Deportation Order against him, and he is neither detained in      pursuance of the sentence or order of a Court nor for the time      being released on bail by a Court having power so to release him,      he may be detained under the authority of the Secretary of State      pending the making of the Deportation Order."   55.   The power to detain after the making of an order derives from paragraph 2(3), which provides:        "Where a Deportation Order is in force against any person, he may      be detained under the authority of the Secretary of State pending      his removal or departure from the United Kingdom (and if already      detained by virtue of sub-paragraph (1) or (2) above when the      order is made, shall continue to be detained unless the Secretary      of State directs otherwise)."   56.   The Home Secretary has a practice of not removing asylum seekers from the United Kingdom pending the resolution of any judicial review proceedings they might bring (Muboyayi case [1992] IQB 244 at 259C).   57.   The High Court has power to review the Home Secretary's decision to maintain an asylum seeker in detention (R v. Governor of Durham Prison, Ex-Parte Hardial Singh [1984] IWLR 704), but it is incumbent on an applicant to demonstrate that the Home Secretary was acting for a collateral purpose or irrationally.   58.   The decisions of the Home Secretary are liable to challenge by way of judicial review and may be quashed by reference to the ordinary principles of English public law. This remedy was explained before the European Court of Human Rights in the case of Vilvarajah and Others (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, pp. 29-31, paras. 89-93, and pp. 38-40, paras. 117- 127).   59.   The High Court's supervisory function in relation to the lawfulness of an asylum decision is not displaced merely because national security issues are also engaged. However, judicial review in this field is limited because "the decision on whether the requirements of national security outweigh the duty of fairness in a particular case is a matter for the Government to decide, not for the courts; the Government alone has access to the necessary information and in any event the judicial process is unsuitable for reaching decisions on national security" (Council of Civil Service Unions v. Minister for the Civil Service [1985] AC. 374, Lord Fraser at 402). Nevertheless, the fairness of the procedure by which the Government have reached their decision is justiciable and it is for the courts to determine whether the Government have in fact balanced any conflicting interests between national security and the individual.   60.   Any person in detention is entitled to seek bail or challenge the lawfulness of his detention by way of a writ of habeas corpus.   61.   Reciprocal extradition arrangements between India and the United Kingdom are possible under the Extradition Act 1989, India being a Commonwealth country. Previous restrictions preventing the return of political offenders were modified by an extradition treaty concluded with India in 1993, and in which were integrated certain notions contained in the Suppression of Terrorism Act 1978. The treaty thus allows extradition for certain serious offences hitherto deemed to have a political character, provided that the extradition request discloses no ulterior elements of a racial, religious, national or political nature. The matters with which the first applicant is reproached, such as conspiracy to supply funds, would not fall within any of the offences defined in the 1978 Act.   C.    The Indian background to the present case, as described by the      Government   62.   In their observations of 23 December 1994, the Government portray the following background to the present case. Since the partition of India in 1947, many Sikhs have been engaged in a political campaign for an independent homeland (Khalistan), based on the Indian province of Punjab. In the late 1970s an increasingly violent group emerged under the leadership of Sant Jarnail Singh Bhindranwale, which was prepared to challenge both the central Indian authorities and moderate Sikhs. Following the killing in 1983 of a senior police officer in the Golden Temple in Amritsar, which Bhindranwale and his followers were using as a base, the situation in the Punjab deteriorated rapidly. On 6 June 1984, the Indian army stormed the Golden Temple ("Operation Blue Star"). A thousand Sikhs were killed, including Bhindranwale. This operation caused domestic and international outrage. Four months later, the Indian Prime Minister, Indira Gandhi, was assassinated in revenge by two Sikh members of her bodyguard. The Hindu backlash after her murder resulted in anti-Sikh riots in Delhi in which over 2000 Sikhs were killed.   63.   Since 1984, the terrorist campaign for an independent Khalistan has claimed over 20,000 lives. Sikh unrest in India peaked in 1992, when apparently around 4000 lives were lost in terrorist related incidents mainly in the Punjab. Since then it has considerably declined; in 1994, only 51 such deaths had been reported by autumn of that year. There are signs that normal life is being restored, with the reassertion of the electoral and judicial processes, after years of acquiescence in the face of police intimidation and militant activity.     64.   Standards still need to be improved, and there is national and local commitment to that. For example, the Chief Minister of the Punjab has agreed to give favourable consideration to setting up a state human rights commission. Whilst abuse of detainees (irrespective of religion or political opinion) by law enforcement authorities has been a widespread problem throughout India, the Indian Government's attitude has now changed, with international criticism of its human rights record being taken seriously. A National Human Rights Commission has been established to monitor developments. It visited the Punjab in 1994 and reported that terrorism had been contained and that normal life was being resumed, thus paving the way to normalising the role and function of the police and re-establishing District Magistrate authority over them, hitherto lacking.   65.   The Terrorist and Disruptive Activities (Prevention) Act (TADA), first introduced in 1985 to deal with the exceptional situation in the Punjab (but enforced throughout the country), has not helped to strengthen the accountability of the security agencies. However, the Central Government are showing some signs of recognising the need to prevent abuses of the TADA, and its operation is now under high level Government review.   D.    The effects of Sikh extremism outside India and particularly in      the United Kingdom, as described by the Government   66.   According to the information of the respondent Government as of 23 December 1994, the few remaining extremist Sikh leaders have taken refuge in a neighbouring country from where they direct operations in India. Although most Sikh terrorist attacks have taken place in India, there have been attacks elsewhere in Canada, Rumania and the United Kingdom.   67.   In the 1980s Sikh terrorist groups organised themselves into so- called Panthic Committees, amongst which there was considerable rivalry. This rivalry spilled over into the United Kingdom.   68.   In August 1984 Jasvir Singh Rode, the nephew and spiritual successor of Bhindranwale who had been killed during "Operation Blue Star", arrived in the United Kingdom to establish branches of the International Sikh Youth Federation (ISYF) which would support the terrorist organisations operating in the Punjab. During his visits to gurdwaras throughout the United Kingdom, Rode made speeches urging Sikhs to return to the Punjab to fight the Indian army. At the Luton gurdwara he stated that he would be keeping £1000 of donations to buy firearms for use in the Punjab. He was expelled in December 1984 because of such public advocacy. Meanwhile Harpal Sing Ghuman, described by the Government as the leader of the military element of Sikh extremism, had also arrived in the United Kingdom, whilst keeping a lower profile.   69. The Government state that in 1988 the ISYF in the United Kingdom began to split into two distinct factions, reflecting the formation of the Panthic Committees in the Punjab. The southern branch sought to take over the organisation and to redirect misappropriated funds to another Panthic Committee. Having failed to bring about a change of leadership by constitutional means, violence and litigation ensued, involving in particular the Havelock Road Gurdwara in Southall, London, and plots were formulated to assassinate leading characters in the conflict which, according to the Government, included the applicant. The conflict ended with an injunction banning certain southern ISYF people from the Havelock Road Gurdwara. The injunction was enforced by the London Metropolitan Police.     E.    The Government's case of the first applicant's involvement in      Sikh extremism and terrorism   70.   In their observations of 23 December 1994, the Government, in addition to what was publicly relied on in the domestic proceedings (para. 28 above) make, inter alia, the following allegations:        a)    When the first applicant was in the Punjab in January 1984,           he had regular contacts with the militant, Bhindranwale, at           the Golden Temple.        b)    The leader of the military element of Sikh extremism,           Ghuman, stayed at the applicant's home in 1984 when they           toured the United Kingdom together in the wake of Rode,           recruiting ISYF activists.        c)    As a result of these associations, the first