Gedara, R (on the application of) v Secretary of State for the Home Department

The claimant challenges a decision of the Secretary of State dated 17^th May 2005 which certified his claim for asylum in accordance with section 94 of the Nationality Immigration Appeals Act 2002 (the 2002 Act). Bean J. granted permission on renewal of the application on 17^th August 2005 and thereafter further representations were made, in particular by the supply of an expert report of Professor Anthony Good dated 14^th October 2005 which became the subject matter of a confirming decision of the Secretary of State dated 3^rd March 2006.

Section 94 of the 2002 Act permits the Secretary of State to certify a claim as “clearly unfounded”. Further, this is a case in which the claimant resists return to Sri Lanka, which is a State listed in subsection (4) in accordance with subsection (3) of the 2002 Act.

The correct legal approach on judicial review of a decision to certify a claim as “clearly unfounded” has received detailed guidance both in the Court of Appeal and the House of Lords and the law is well settled. It follows that the following material propositions are common ground:

A claim is only “clearly unfounded” if it is “bound to fail before an adjudicator” [now an immigration judge]. R (Razgar) v Secretary of State for the Home Department (CA) [2003] EWCA Civ 840 or, on an alternative formulation if it “cannot on any legitimate view succeed”, R (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ 25.

The determination of whether or not a claim is “clearly unfounded” involves an objective test, “which a court can readily re-apply once it has the materials which the Home Secretary had” (R (ZL and VL) v Secretary of State for the Home Department).

The test is plainly a high one and will be applied with “the degree of careful scrutiny appropriate to the seriousness of the subject matter”.

Assessment for certification is a “screening process”. However, if the claim must clearly fail, certification is lawful “no matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation”. (R (Yogathas) v Secretary of State for the Home Department [2003] 1AC 920).

The claimant is a national of Sri Lanka (date of birth 21^st May 1966). He joined the Sri Lankan Police Force in 1986. He originally worked as a constable until he was promoted to Intelligence Officer with a rank of police sergeant in the Intelligence Unit of the Police Force. His duties included gathering intelligence in the war against the LTTE.

Whilst on service in 1990, the police station to which he was attached was attacked by the LTTE and the claimant was seriously injured. After recovery from his injuries, including hospital treatment, he returned to the police station and was put back on duty with the Intelligence Unit.

As a result of his duties, he gathered intelligence on the operations of the LTTE and was responsible for arrests of over 100 members of the LTTE. The LTTE began to retaliate against intelligence officers and the claimant requested a transfer from Trincomale to Matale. This was granted and he remained there for four years.

He was then ordered to Jaffna and he spent a year there, but was ordered to return to duties in Matale in March 2000. He continued with his duties in Matale until 2002 when he was transferred to the Kandy district. He was then there for a short time before being transferred back to Jaffna.

The claimant was particularly successful in investigations against the LTTE. He became well known among the leadership of the LTTE and they regarded him as a serious threat to their operations. He was told by informers that his life was in danger as the LTTE wanted to kill him.

Because of his concerns, he approached his superiors and requested protection. They gave him a pistol and a hand grenade, but he was told that outside the high security zone of the police station he could not be offered protection. The claimant’s senior officer advised him to leave the country temporarily and to return only after the situation calmed down. The material before the court includes a statement dated 2^nd May 2004 from the Headquarters Chief Inspector at the police station at Jaffna. The statement confirms that the claimant was one of the main intelligence operatives and a highly valuable individual to the police security force in Sri Lanka and goes on to state that he:

The claimant arrived in the United Kingdom on 19^th May 2004 on a six months’ visitor visa and was granted leave to enter accordingly. It is not disputed that at this date he was still a serving police officer in Sri Lanka and that he has not, at any time, resigned his commission. After four months he consulted a solicitor and he was advised to wait until the situation in Sri Lanka had calmed down to see whether he could go back. Two months after his visa expired the situation in Sri Lanka had not improved and he applied for asylum. He was interviewed at length by an immigration officer on 9^th May 2005, representations were made on 10^th May 2005 on his behalf, which representations included objective material available from reports in the public domain, a medical report in respect of injuries and a copy of the letter to which I have referred from the Chief Inspector at the police station in Jaffna.

The representations were advanced upon the basis that the claimant had a well founded fear of persecution under the Refugee Convention and that there were substantial grounds for considering he would face a risk of breach of his rights under the ECHR if he were returned to Sri Lanka. It was alleged that there was an insufficiency of protection available to the claimant and that internal relocation was not a viable option. So far as the Refugee Convention was concerned, he maintained that the relevant Convention reason was his membership of a particular social group, namely an intelligence officer in the Sri Lanka police. As I have indicated, both claims were certified as clearly unfounded pursuant to section 94(2) of the 2002 Act.

The Secretary of State submits that the claimant’s claims could not, on any legitimate view, succeed before an immigration judge, for the following reasons:

As to the asylum claim, as a matter of established principle, there is no entitlement to refugee status because of risks arising out of service in the security forces, whether against an external or internal enemy;

As to the ECHR claim, that the above principle should be held to be equally applicable to the facts constituting his human rights claim;

As to both the asylum and human rights claims, the content of the claimant’s case is insufficient to demonstrate a real risk of harm. It is submitted that the claimant does not have any arguable case that the Sri Lankan authorities would fail to meet its obligations to protect its citizens;

The claimant has failed to put forward any good reason why he could not safely relocate internally within Sri Lanka.

The contentions at (1) and (2) above depend upon the true effect of the decision of the Court of Appeal in the case of Fadli [2000] EWCA Civ 297.

The appellant Fadli was an Algerian who had sought asylum in this country. His application was refused by the Secretary of State and his appeal to a special adjudicator was unsuccessful. He was also refused leave to appeal to the Immigration Appeal Tribunal. He applied for judicial review and Munby J. dismissed the claim, but gave him permission to appeal to the Court of Appeal. The only ground argued in the Court of Appeal turned on his legal obligation, since he was an Algerian citizen, to do military service in Algeria. He alleged that if he refused to do it, he would be subjected to a term of imprisonment and that, if he did it, his life and his family’s life would be at risk from the Groupe Islamique Arme (GIA) because he would be perceived by the GIA as being opposed to its aims and objects. His case was that he, along with others who do military service in Algeria, are at risk from GIA both whilst they are serving soldiers and thereafter.

The special adjudicator held that objection to military service was only capable of amounting to a Convention reason if either (i) it was on conscientious grounds or (ii) the punishment for refusal would itself, for some Convention reason, be excessively severe. The Court of Appeal had to consider whether the special adjudicator had addressed the correct question and, in particular, the question whether the appellant fell within the definition of refugee in Article 1A(2) of the Geneva Convention. Schiemann LJ succinctly summarised both the Convention reasons which could give rise to a successful claim for asylum and the principle of surrogacy. He referred to the United Nations Handbook which contained some paragraphs dealing with the situation of soldiers and which, by way of example, stated that a person is clearly not a refugee if his only reason for draft evasion is his dislike for military service or fear of combat. In other passages the United Nations Handbook observed that a soldier may be a refugee if his desertion or evasion of military service is connected with other relevant motives for leaving or remaining outside his country or if he otherwise has had reasons within the meaning of the definition to fear persecution.

It was not disputed, on behalf of the appellant, that a citizen is not entitled to refugee status simply because he is expected to risk his life while doing military service either against an external enemy of the State or an internal enemy of the State. However, it was argued that a serving soldier could be entitled to refugee status if the evidence showed that the State was unable to give the appellant practical protection against a risk, for example, that when he was on leave he was exposed to persecution as a member of a particular social group, namely serving soldiers. In essence, the contention advanced on behalf of the appellant drew a distinction between the requirement of a serving soldier to engage with hostile forces in battle, as opposed to the risks of being engaged by terrorist attacks against his private house.

In paragraph 18 Schiemann LJ stated as follows:

It is clear that the ratio of Fadli is not limited to serving soldiers. In paragraph 11 the court stated:

The claimant resists the application of the ratio of Fadli to his asylum claim and submits that the extension of the ratio to an ECHR Convention claim is impermissible. Mr Khubber submitted that the facts of the claimant’s case were materially different from the facts in Fadli. He characterised them as unusual, emphasising that the claimant had been particularly successful in detecting and identifying LTTE activists. He had been fulfilling those duties for nearly two decades. As a result he was clearly in a highly exposed position, in a country where the objective evidence demonstrated that persons involved in such work were specifically targeted, sometimes being abducted and murdered, and where a senior officer had recognised that the claimant was at such risk that he should leave Sri Lanka:

It is true that the facts in connection with the risk to which, by reason of his service with the police, the claimant is exposed, have been specifically laid out whereas the risk was generally stated in Fadli. However, the heightened awareness this creates does not lead me to conclude that there is any material difference between the facts of this case and the facts in Fadli. It is not the degree or imminence of the risk which is critical, but its source and the circumstances which have given rise to the existence of the risk. The LTTE cannot be distinguished from the GIA, and its desire for revenge against a member of the security forces who has opposed it constitutes, for all material purposes, an identical set of circumstances.

As to the ECHR claim, Mr Khubber submitted, correctly, that no mention was made of the ECHR in Fadli. Next he submitted that a claim for protection can succeed under the ECHR where the same claim for protection under the Refugee Convention could not. He submitted that the ECHR widens the reach of protection, making it available, regardless of the motive giving rise to the persecution and the occupation of the applicant. For example, he submitted that the ECtHR has resisted any attempt to restrict the application of Article 3 because of the conduct or motivations of an applicant. It is submitted that if the Secretary of State is correct, a member of the LTTE, being a person who would probably not be able to claim protection under the Refugee Convention, because of the exclusion clauses in the Convention, would be able to claim protection under the ECHR if he could show that there was a real risk of agents of the State acting in a way contrary to Articles 2 or 3 of the ECHR. In contrast, a person in the position of the claimant who could show a real risk of unlawful attack by non-State agents could be expected to risk his life.

Ms Giovannetti submitted that the claimant’s arguments ignore an important feature in connection with Convention rights, namely that the content of various rights can vary according to the context (see Sen and Others v Turkey, Application 45824/99 and Rekvényi v Hungary, Application 25390/94). In short, she submits that the content of reasonable protection will depend on the circumstances. It will not be the same for a police officer as it is for a member of the public at large. Thus the explanation for the hypothetical advantage for the member of the LTTE being entitled to protection under Article 3 of the ECHR and a police officer not being entitled, flows, not because members of the armed forces or the police are excluded from the protection of Articles 2 and 3 of the ECHR, but because States are entitled to impose certain obligations upon individuals. In the case of Sen, the following observations were made:

Thus the Secretary of State does not dispute that Article 3 of the ECHR can have a broader reach than the Refugee Convention, but Ms Giovannetti submits that the distinctions which have been drawn are simply not material for the purposes of the present case. She submits that Fadli recognises that a State is entitled to require soldiers and policemen, as representatives of the organs of the State, to face a heightened risk of harm from internal or external enemies in order that it can provide due and practical protection to its citizens. As a result, the exposure of soldiers or police officers to such dangers is not, without more, a breach of the State’s obligation to provide a reasonable level of protection to them.

In my judgment the submissions based upon the case of Fadli and its application, both to the Refugee Convention and the ECHR and advanced on behalf of the Secretary of State, are correct. Articles 2 and 3 of the ECHR enshrine fundamental values in absolute terms, but they are not free standing. They stand to be interpreted by reference to the full terms of the ECHR and in a manner which promotes the protection of the rights conferred and not so as to frustrate due protection being accorded to all those entitled to protection. In so far as it might be argued that the ECtHR decision in Chahal v United Kingdom (1996) 1 BHRC 405 does not conform to these principles, it should be regarded as an exception. The ECHR establishes a principled framework for protection to which States must adhere for the protection of citizens and those within its territory, but the reach and character of the protection is (a) personal to the individual and (b) has to be interpreted having regard to all the human rights obligations imposed upon a State. A State cannot fulfil its obligation to provide practical protection for its citizens against, for example, insurgents, without service from security forces, comprising policemen and soldiers. Where, by reason of their service, they become exposed to the risk of harm, the ambit of the State’s duty to protect them does not extend to the risk of harm arising from protection they have provided to fellow citizens. Further, the reach and content of the protection afforded to individuals will depend upon the circumstances touching the existence and character of the risk to which they have become exposed. For this reason, it has consistently been held that a State’s obligation is to provide practical protection in the particular circumstances of an individual’s case (see below).

The claimant accepts that a State does not have to guarantee perfect safety and that the real question is whether the protection which is offered in Sri Lanka is practical and effective in the particular circumstances of his case. He submits, relying upon the letter at page 109 of the bundle, that he has made out a case fit to go before an adjudicator that there is a lack of practical and effective protection. He also relies upon reports from Professor Good being a survey of the available objective material pointing to the particular risk to which members of the security forces have been exposed.

As to both these aspects of the case on sufficiency of protection, Ms Giovannetti submits that the letter at page 109 can amount to no more than an opinion of a senior officer that it was in the claimant’s interests to leave the country until matters quietened down. By its terms, it does not purport to be a statement going to the practical protection which could be provided in Sri Lanka to the claimant. Further, as to the evidence which is relied upon to the effect that the LTTE has managed to assassinate a number of intelligence operatives and thus it has been demonstrated that the State has failed to “obviate” the risk to which the claimant would be exposed, she, in my judgment, correctly submits that the fact that the LTTE may have succeeded in assassinating a certain number of officers does not, of itself, show that the State has failed to take precautions against and thus provide the appropriate protection for those in the position of the claimant. See R (Bagdanavicius) v Home Secretary [2005] 2 App 668, in particular, at paragraphs 24 and 27.

The Secretary of State does not suggest that the material cannot support a case that the claimant is at risk, but that he has failed to provide any evidence that the level of protection provided by the Sri Lankan authorities is not reasonable. There is only a limited amount of factual material directly affecting the claimant. He was provided with a pistol and a hand grenade for his own protection while outside the police station and Mr Khubber has emphasised that the fact that he has been relocated for the purposes of his duty is significant. That said, he has not identified any steps which he contends the Sri Lankan authorities failed to take and which would have been necessary for it to take in order to discharge its obligation and provide him with reasonable protection. Essentially, he relies upon the letter at page 109.

In my judgment, the claimant’s case demonstrates the degree of practical protection which the State provides in Sri Lanka. He has been detecting and apprehending rebels. He has been relocated from time to time and issued with a pistol and a hand grenade for self-protection. It cannot be said that the State is unwilling to provide him with practical protection nor can I accept the letter at page 109 as a definitive statement on behalf of the authorities that no practical protection could be provided and that the only way in which he could be protected was by leaving the country.

The only reason advanced by the claimant for not relocating to another part of Sri Lanka, for example such as Colombo, is that, in taking up some form of employment outside the police, he would be “even more vulnerable to the LTTE”. In my judgment, Ms Giovannetti is correct when she submits that this is simply not borne out by the objective evidence. The two reports from Professor Good do not identify any evidence to demonstrate there is a real risk of harm to the former intelligence officers in Colombo. In his first report, Professor Good cited no examples of former police officers being victims. In his supplementary report he identified one case of a former police officer, Mr Rilvan, who was allegedly killed by the LTTE. But the reports indicate that the police in Sri Lanka did not believe that he was killed simply because of his former role as an intelligence officer as opposed to having been suspected by the LTTE of double crossing them. The incident did not take place in Colombo, which is the area identified by the Secretary of State as suitable for internal relocation by the claimant.

For all the above reasons, this claim for judicial review must be dismissed. Having carefully scrutinised the issues in the case, I am satisfied that the claim is bound to fail before an immigration judge.