R v The Immigration Appeal Tribunal & Anor ex p. Rajendrakumar

The Convention inquiry is composite. The tribunal must assess whether there is a real risk of persecution for a Convention reason by considering all relevant circumstances together. Relevant factors include the frequency and duration of detention, the security context, the purpose of arrests, and efforts to confine them to realistic suspects. Possible unlawfulness under domestic or international law does not by itself establish persecution for a Convention reason, although conduct cannot be described as justified unless lawful. In asylum appeals, risk is assessed at the appeal date because the statutory question concerns future removal. Later changes in country conditions may therefore be considered, provided the parties have a fair opportunity to respond.

Three young male Tamils from Sri Lanka were refused asylum and lost their appeals before the immigration appellate authorities. Rajendrakumar sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. Sandralingam and Ravichandran appealed against the Tribunal’s dismissal of their appeals.

The appellate authorities accepted that young Tamils were periodically rounded up in Colombo but found that the practice did not amount to persecution and that the risk of ill-treatment had materially improved. The central issues were whether the round-ups constituted persecution for a Convention reason, whether later improvements could be considered, and whether the appellants had been given a fair opportunity to address that evidence.

The application and both appeals were dismissed. Lord Justice Simon Brown delivered the principal judgment. Lord Justice Staughton agreed, adding separate observations, and Lord Justice Nourse agreed with both judgments.

1. Composite inquiry. The question whether a person faces a well-founded fear, or real risk, of persecution for a Convention reason is a single composite question. It is potentially misleading to decide separately whether conduct is persecution and what reason motivates it. The court must consider the circumstances in the round. Relevant matters include the frequency of round-ups and length of detention, the security situation and the government’s need to combat terrorism, the true purpose of the arrests, and whether the authorities sought to detain only persons realistically suspected of involvement.
2. Round-ups and ill-treatment. On the evidence, the arrests were directed to maintaining public order rather than oppressing Tamils as such. The detentions were relatively limited, most detainees were released after a reasonable period, and the particular risk profile of those arrested supported the appellate authorities’ conclusions. A possible breach of Sri Lankan law or the 1966 Covenant would not necessarily amount to persecution for a Convention reason. The appellate authorities were wrong to call the round-ups justified unless they were lawful, but that error did not establish refugee status. The Canadian decision in Thirunavukkarasu was distinguishable because it rested on different evidence concerning a different period. The current evidence also did not establish a significant present risk of ill-treatment.
3. Date of assessment. An asylum appeal concerns whether future removal would breach the Convention. Section 8(1) of the Asylum and Immigration Appeals Act 1993 therefore makes the appellate process an extension of the decision-making process. The ordinary retrospective approach applicable to general immigration appeals under section 19 of the Immigration Act 1971 yields insofar as it would exclude later developments. The reasoning in Weerasuriya and Kotecha was accordingly not applied to asylum appeals. This approach avoided unnecessary further applications under the cessation provisions or on the basis of later deterioration.
4. Fairness. There was no procedural unfairness. Evidence had been added progressively, the appellants had argued whether later developments were relevant, and there was no evidence that an adjournment had been sought and refused.

The application and appeals were dismissed with costs not to be enforced without leave, subject to legal aid taxation. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): On 11 October 1995 dismissed the judicial review application and the two appeals.
• Immigration Appeal Tribunal: Dismissed the appeals of Sandralingam and Ravichandran on 19 January 1995, and refused Rajendrakumar leave to appeal.
• Special adjudicators: Made adverse asylum determinations in August 1994 and February 1995 respectively.