R v Secretary of State for the Home Department, Ex parte Sivakumaran (Navaratnam, Ex parte, Rasalingan, Ex parte, R v Secretary of State for the Home Department, Ex parte Navaratnam, R v Secretary of State for the Home Department, Ex parte Rasalingan, R v Secretary of State for the Home Department, Ex parte Vaithialingam, R v Secretary of State for the Home Department, Ex parte Vathanan, R v Secretary of State for the Home Department, Ex parte Vilvarajah, Sivakumaran, Ex parte, Vaithialingam, Ex parte, Vathanan, Ex parte, Vilvarajah, Ex parte)

Under article 1A(2) of the United Nations Convention Relating to the Status of Refugees, actual fear alone is insufficient. Objective facts must demonstrate a real and substantial risk of persecution for a Convention reason if the claimant returns to the country of nationality. The required probability is a reasonable degree of likelihood. It is lower than a balance of probabilities and may also be described as a reasonable chance or serious possibility.

The decision-maker may consider facts unknown to the claimant and must assess actual conditions in the country of return. Determination of refugee status belongs to the Secretary of State. A reviewing court examines legality and procedural fairness with particular care where life or liberty may be endangered, but does not substitute its own assessment of refugee status.

Six Sri Lankan Tamils applied for asylum and claimed refugee status. The Secretary of State refused their applications after considering information about conditions in Sri Lanka. McCowan J dismissed their applications for judicial review.

The Court of Appeal, reported at [1987] 3 WLR 1047, reversed that decision and quashed all six refusals. It held that a fear could be well-founded if it was genuinely and reasonably held from the claimant's standpoint, even where later information showed that the feared persecution presented no actual risk. The Secretary of State appealed, and the United Nations High Commissioner for Refugees intervened.

The central issue in R v Secretary of State for the Home Department, Ex parte Sivakumaran and others was whether a well-founded fear under article 1A(2) required an objectively demonstrated risk of persecution.

1. Disposition. The House unanimously allowed the Secretary of State's appeals. The Court of Appeal's order was reversed, save as to legal aid taxation, and the orders of McCowan J dismissing the applications were restored. Lord Keith of Kinkel delivered the principal speech. Lord Templeman and Lord Goff of Chieveley gave concurring reasons, and Lord Bridge of Harwich and Lord Griffiths expressly agreed with all three speeches.
2. The governing test. Per Lord Keith, the requirement that fear be well-founded means that a reasonable degree of likelihood of persecution for a Convention reason must be demonstrated. Lord Goff agreed that the claimant's subjective fear must be objectively justified. Lord Templeman expressed the same conclusion as requiring a real and substantial danger of persecution. The necessary likelihood is lower than proof that persecution is more likely than not. The expressions reasonable chance, substantial grounds for thinking and serious possibility describe the appropriate degree of risk.
3. Objective assessment. Per Lord Keith and Lord Goff, the decision-maker must consider the actual conditions in the country of nationality. The inquiry may include facts unknown to the claimant. A genuinely held fear that is objectively shown to be misconceived is not well-founded. The Court of Appeal's reasonable-courage formulation and its imitation-firearm analogy were therefore rejected. Articles 1C(5) and 1C(6) of the United Nations Convention Relating to the Status of Refugees supported an objective interpretation.
4. Decision-maker and judicial review. Consistently with R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514, determination of refugee status was for the Secretary of State rather than the court. Per Lord Templeman, judicial review remained available for breach of the legislation or rules, procedural impropriety, unfairness or other unlawfulness. The court bore a special responsibility when a flawed decision might imperil life or liberty, but could not replace the Secretary of State's lawful assessment with its own.
5. Application. The Secretary of State had considered departmental reports, published material, Foreign Office information and ministerial visits. He had assessed both the position of Tamils generally and the circumstances of each claimant. His decisions conveyed that he found no real risk of persecution for a Convention reason. The decision-making process disclosed no legal error.
6. Additional observations. Per Lord Goff, with Lord Bridge and Lord Griffiths agreeing, article 33 applied to all persons determined to be refugees under article 1; the two provisions did not impose different tests. The Secretary of State also retained an overriding discretion to depart from the Immigration Rules and admit a claimant where justice required it.

1. House of Lords: In R v Secretary of State for the Home Department, Ex parte Sivakumaran and others [1988] AC 958, the House unanimously allowed the Secretary of State's appeals, reversed the Court of Appeal's order and restored the orders of McCowan J.
2. Court of Appeal: The court, reported at [1987] 3 WLR 1047, reversed McCowan J and quashed all six decisions of the Secretary of State.
3. High Court: McCowan J dismissed each application for judicial review on 25 September 1987.