AS TO THE ADMISSIBILITY


Application No. 13162/87
by V. P.
against the United Kingdom


        The European Commission of Human Rights sitting in private on
9 November 1987, the following members being present:

              MM. C. A. NØRGAARD, President
                  S. TRECHSEL
                  G. SPERDUTI
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  A. S. GÖZÜBÜYÜK
                  A. WEITZEL
                  J. C. SOYER
                  H. G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
                  J. CAMPINOS
             Mrs.  G. H. THUNE
             Sir  Basil HALL
             Mr.  F. MARTINEZ
             Mr.  C.L. ROZAKIS
             Mrs.  J. LIDDY

             Mr.  J. RAYMOND, Deputy Secretary to the Commission

        Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 26 August 1987
by V. P. against the United Kingdom and registered on
26 August 1987 under file No. 13162/87;

        Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a citizen of Sri Lanka, of Tamil racial
origin, born in 1963, who at the time of lodging his application was
detained at H.M. Detention Centre Latchmere, England, pending his
deportation from the United Kingdom back to Sri Lanka, and who has
in the meanwhile been returned to Sri Lanka.

        He is represented before the Commission by Messrs.  Winstanley-
Burgess, Solicitors, London.

        The facts of the case, as submitted by the applicant's
representatives, may be summarised as follows:

        The applicant's father is the Assistant Commissioner of the
Agricultural Service in Mullaittivu.  He was arrested twice in 1986.
First he was taken to the Elephant Pass army camp and detained for a
few hours of questioning.  Secondly, he was arrested in April by the
army and detained at the Mullaittivu army camp for two days.  His
jeep, which was given to him by the Agricultural Service for official
purposes, had been taken by Tamil militants.  He was released on the
return of the jeep.  The applicant states that it is possible that his
father had connections with the Tamil militants, but he does not have
any details of this activity.

        In September 1985, following a landmine explosion in Urella,
the applicant's village, the security forces rounded up the entire
village and arrested most of the young men.  A cooperative store owner
and his two sisters were killed.  The applicant went into hiding
during this period.  The security forces had moved into Vasavillan at
that time, about 3 1/4 miles from his house, and it became
increasingly difficult for young Tamil men to live in the area.

        After the news reached Jaffna of the massacres in Batticaloa
at the end of 1986, the applicant's father made arrangements for the
applicant to leave Sri Lanka.  He left Jaffna on 6 January 1987 by bus
to Colombo and stayed with his sister in Colombo until 20 January 1987.

        He paid an agent living in Colombo 50,000 rupees for an
airline ticket and a forged United Kingdom visa.  He did not know it
was a forgery until he was so informed by the Immigration authorities
at Heathrow airport.  He flew to Kuala Lumpur on 20 January 1987 where
he stayed with a friend until 12 February 1987 when the agent arranged
his departure for the United Kingdom via Bangladesh.  He was in Dhaka
airport for four hours, arriving in the United Kingdom on 13 February
1987, where he applied for political asylum.

        The applicant was interviewed twice by the United Kingdom
Immigration Service.  Once for 25 minutes on 13 February 1987 at
Heathrow and once for 25 minutes at Erlestoke House on 15 March 1987.
The questions asked were how he left Jaffna and Colombo, details about
the agents used, passport details, costs, family details, the
political affiliation of his father and himself, employment and study
prospects in Sri Lanka and his relations in the United Kingdom.

        It seems that the application for political asylum was refused
and the applicant's removal from the United Kingdom was ordered.  A
stay of removal directions was obtained from the Divisional Court in
London and on 24 February 1987 a full Divisional Court granted leave
to bring judicial review after a two day hearing.  On 2 March 1987 the
Home Office conceded that a fresh decision would be made and that
representations would be entertained and should be lodged by 18 March
1987.  The applicant was kept in detention throughout the proceedings.

        On 20 August 1987 the applicant was served with notice of the
Secretary of State's refusal of political asylum, the relevant part of
which reads as follows:

        "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
        reasons of race, religion, nationality, membership of a social
        group or political opinion.  When interviewed by the immigration
        officer you said that you were afraid to live in Sri Lanka
        because of the troubles and you feared arrest and detention.
        Although you personally had not been harassed or arrested your
        father had been arrested at the end of 1985 and detained for two
        days.  When UKIAS (the United Kingdom Immigrants Advisory Service)
        submitted Notices of Interviews their representatives had
        conducted with you, it was stated that your father had been
        arrested on two occasions in 1986, once for a few hours and once
        for two days.  It was further stated that the security forces had
        moved into Vasavillan about three and a quarter miles from your
        house and it became increasingly difficult for young Tamil men to
        live in the area.

        However it has been established after three further interviews
        that you left Sri Lanka in 1983 and travelled to Europe.  You
        claimed asylum first in West Germany and then in Switzerland but
        in both cases you left the country before a decision was reached
        on your asylum application.  You travelled to France and on
        11 June 1985 you were arrested in the company of five others for
        possession of 3.2 kilos consisting of heroin and other
        substances.  You were found guilty and sentenced to two years'
        imprisonment and (permanently banished?) from French territory.
        You were deported to Sri Lanka on your release from prison on or
        around 15 November 1985 (?).  You lived in Sri Lanka without
        incident before your departure to Kuala Lumpur and thence to the
        United Kingdom.  It is also relevant that you lived in Sri Lanka
        without incident prior to your departure to Europe in 1983.

        In conclusion you have not claimed to have personally
        suffered ill treatment, harassment or persecution in
        Sri Lanka and the Secretary of State having considered the
        individual circumstances of your case and in addition the
        situation in Sri Lanka has indicated that you have not
        established a well-founded fear of persecution in Sri Lanka.

        Even if the Secretary of State were of the opinion that you
        are a refugee you would be excluded from the benefit of the
        1951 United Nations Convention relating to the status of
        refugees as there are strong reasons for considering you have
        committed a serious non-political crime outside the United
        Kingdom before coming to this country, namely possession of
        heroin.  Since you do not otherwise qualify for leave 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 schedule 2
        of the 1971 Immigration Act."

        The applicant's representatives claim not to have been
notified of this refusal, but were informed by the media of the
applicant's imminent removal from the country, together with certain
other Sri Lankan Tamils.  On the afternoon of the refusal, the
assistant to the applicant's Member of Parliament requested the Home
Secretary's Office to defer removal so that the Member of Parliament
could make representations, so that legal aid could be sought for
judicial review and so that such a review application could be lodged
in the Divisional Court.  These requests were refused.

        An application for judicial review was nevertheless made to
the Divisional Court on 21 August 1987.  That application was refused.
The applicant then sought to exercise his right to renew his
application before the Court of Appeal, the Court of Appeal having
been warned during the course of the afternoon that it was likely that
the application would be made.  Unfortunately, late in the afternoon,
it became apparent that a full Court of Appeal could not be
constituted, it being the holiday period.  The Home Office refused to
agree to defer the removal (set for the evening of 22 August 1987)
until such a Court could be constituted during the course of the
following week.

        During the evening of 21 August 1987, the applicant's
representatives prepared a second application for judicial review,
this time of the Secretary of State's refusal to defer removal so that
a fully constituted Court of Appeal could hear the application for
leave.  This application was put before the duty judge at his home
late on the morning of 22 August 1987.  The application was adjourned;
the duty judge made an order staying the removal of the applicant.
The representatives took this order to Heathrow Airport following the
hearing, and the removal of the applicant was stayed.

        The renewed application for leave to move for judicial
review came before a fully constituted Court of Appeal at 11.00 hrs on
26 August 1987.  It was refused in the applicant's case and he was
returned to Sri Lanka on 28 August 1987.


COMPLAINTS

1.      The applicant's complaint is that he has been denied any
effective or independent review of the Secretary of State's decision
to refuse asylum.  The applicant refers to the view held by the Office
of the United Nations High Commissioner for Refugees (UNHCR) that it
is for a Government to recognise a refugee, it does not declare him
to be one.  Accordingly, a genuine refugee will not cease to be one
merely because the Government of the day declares him not to be such.

        The Executive Committee of the UNHCR's programme (28th
Session October 1977) issued certain requirements including one that
applicants for refugee status should have a reasonable time to appeal
against an adverse decision for a formal reconsideration of the
decision, either to the same or to a different authority, whether
administrative or judicial, according to the prevailing system.

        The Government has previously argued to the Home Affairs
Committee of the House of Commons that asylum applicants at the
airport did not need appeal rights since there are a number of
safeguards.  These safeguards were representations by Members of
Parliament, judicial review and the referral procedure organised by
UKIAS.  The Committee recommended the extension of appeal rights but
this extension was rejected by the Government on the basis that the
safeguards were satisfactory.  Since that time, the House of Lords has
limited its own jurisdiction in refugee cases to a supervisory one
only.  The courts will only intervene if there is evidence of gross
unreasonableness.

        The Government has declared in the House of Commons that
applicants can no longer expect to have their cases referred to
UKIAS.  The Government has also sought to limit Members of
Parliament's ability to intervene on behalf of asylum claimants and in
the present case the MP's right to intervene.

        In respect of this grievance the applicant invokes Article 3
of the Convention.

2.      The applicant also complains of a breach of Article 8 of the
Convention concerning an allegedly unjustified interference with his
right to respect for private life since he claims to have a genuine
and well-founded fear of persecution if returned to Sri Lanka.

3.      Finally the applicant complains of a breach of Article 6 of
the Convention for, if refugee status is a "civil right", there is no
possibility of a fair hearing by an independent and impartial tribunal.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced and registered on 26 August
1987.  It was lodged with three other Tamil cases (Applications
Nos. 13163/87, 13164/83 and 13165/87), accompanied by a request under
Rule 36 of the Commission's Rules of Procedure that the Commission
indicate to the respondent Government the desirability of a stay of
the removal measures until the Commission had had a chance to examine
the admissibility of the applicant's case.  The Acting President of
the Commission decided not to indicate any interim measures to the
parties.  The Deputy Secretary to the Commission informed the
respondent Government, pursuant to Rule 41 of the Rules of Procedure,
of the introduction of the application and of a summary of its
objects.

THE LAW

1.      The applicant has complained that the procedure for dealing
with his request for political asylum in the United Kingdom violated
Article 3 (Art. 3) of the Convention, which provides as follows:

        "No one shall be subjected to torture or to inhuman
        or degrading treatment or punishment."

        However, according to the constant case-law of the Commission
and the Court, ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3 (Art. 3) (Eur. Court H.R.,
Ireland v.  United Kingdom judgment of 18 January 1978, Series A no. 25
para. 162).  The Commission finds that no severe ill-treatment has
been meted out to the applicant whilst in the United Kingdom and, in
particular, that the applicant has not been subjected to treatment
contrary to Article 3 (Art. 3) by virtue of the political asylum procedure,
however frustrating or disappointing the outcome of those procedures
may have been for him (cf. mutatis mutandis No. 7994/77 Kotälla v.
the Netherlands, Dec. 6.5.78, D.R. 14 p. 238).

        The Commission also refers to its constant case-law concerning
cases of political asylum:

        " ... even though the questions of extradition, expulsion and
        the right to asylum do not figure, as such, amongst those rights
        which govern the Convention, the Contracting States have
        none the less agreed to restrict the free exercise of their
        rights under general international law, including their right to
        control the entry and exit of foreigners, to the extent and
        within the limits of the obligations they have accepted under the
        Convention (cf. mutatis mutandis the decision of 30 June 1959 on
        the admissibility of application No. 434/58, Yearbook 2, p.
        373).  Consequently, the expulsion or extradition of an
        individual could, in certain exceptional cases, prove to be in
        breach of the Convention and particularly of Article 3 (Art. 3),
        whilst there are serious reasons to believe that he could be subjected
        to such treatment prohibited by the said Article 3 (Art. 3)
        in the State to which he must be sent."
        (No. 6315/73, X. v. the Federal Republic of Germany, Dec.
        30.9.74, D.R. 1 p. 73)

        The applicant has raised the question of his fear of
persecution if returned to Sri Lanka in the context of Article 8 (Art. 8)
of the Convention, which guarantees, inter alia, the right to respect for
private life, subject to certain limited exceptions.

        The Commission finds the applicant's reliance on Article 8
(Art. 8) of the Convention misplaced and has considered the substance of his
complaint in the light of Article 3 (Art. 3) of the Convention.

        The Commission notes the reasons for the Secretary of State's
refusal of the applicant's asylum request:  The applicant himself has
not suffered ill-treatment in Sri Lanka and nor have his family.  Even
though his father was arrested twice no allegation has been made that
he was ill-treated whilst detained.  The Commission also notes that
the applicant has not submitted any evidence to contradict the
Secretary of State's conclusions or in any other way substantiated his
claim that he is likely to face persecution on return to Sri Lanka.

        In the light of the above considerations, the Commission
concludes that the present case does not disclose any appearance of a
breach of Article 3 (Art. 3) of the Convention, either in respect of
the asylum procedures in the United Kingdom or in respect of the
alleged fear of persecution on return to Sri Lanka.  These aspects of
the application are, therefore, manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.      The applicant has also complained of an absence of a fair
hearing by an independent and impartial tribunal, in accordance with
Article 6 para. 1 (Art. 6-1) of the Convention, as regards his request for
political asylum.  He suggests that the political asylum procedures in
the United Kingdom give rise to a determination of a civil right
within the meaning of this provision.

        However, the Commission has constantly held that the
procedures followed by public authorities to determine whether an
alien should be allowed to stay in a country or should be expelled are
of a discretionary, administrative nature, and do not involve the
determination of civil rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention (cf. e.g.  No. 7729/76, Agee v. the
United Kingdom, Dec. 17.12.86, D.R. 7 p. 164 and No. 8118/77,
Omkaranda and the Divine Light Zentrum v.  Switzerland, Dec. 19.3.81,
D.R. 25 p. 105). The Commission finds that political asylum
applications fall within this category of procedures which do not
determine civil rights within the meaning of Article 6 para. 1
(Art. 6-1) of the Convention.  Accordingly the Commission must reject this
aspect of the application as being incompatible ratione materiae with
the provisions of the Convention, pursuant to Article 27 para. 2
(Art. 27-2).

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.


  Deputy Secretary to the Commission     President of the Commission




             (J. RAYMOND)                      (C.A. NØRGAARD)