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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Robinson, R (on the application of) v Secretary of State for the Home Department & Anor  EWCA Civ 3090 (11 July 1997)
Cite as:  EWCA Civ 3090,  4 All ER 210,  3 WLR 1162,  INLR 182,  Imm AR 568,  QB 929
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE BROOKE
|IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
|R E G I N A
|- v -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|IMMIGRATION APPEALS TRIBUNAL
|EX PARTE ANTHONYPILLAI FRANCIS ROBINSON
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)
MR D PANNICK and MISS A FOSTER (Instructed by The Treasury Solicitor, London SW1H 9JS)) appeared on behalf of the Secretary of State.
MR M SHAW (Instructed by the Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Immigration Appeal Tribunal.
Crown Copyright ©
LORD WOOLF, MR: This is the judgment of the court primarily prepared by Lord Justice Brooke.
"I do not think there is any serious possibility that the appellant can be regarded as having a special characteristic by reason of the fact that he is his uncle's nephew which means that he is likely to be treated differently from other Tamils of his age and background living in Colombo or other areas controlled by the Sri Lankan government.
I accept the appellant could not reasonably be expected to return to an area controlled by the LTTE. There is a risk that he would be recruited by them against his will to support them. The issue is whether the appellant can safely return to an area controlled by the Sri Lankan authorities. In my view the appellant is not at particular or unusual risk compared with other Tamils in Colombo. He does not satisfy me that he has a well-founded fear of persecution."
The definition of refugee and the "internal flight alternative"
"(2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...."
"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil was conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."
"8 Relocation within the country of origin
Where it appears that persecution is clearly confined to a specific part of a country's territory, it may be necessary, in order to check that the condition laid down in Article 1 A of the Geneva Convention has been fulfilled, namely that the person concerned 'is unable or, owing to such fear of persecution, is unwilling to avail himself of the protection of that country', to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move."
"The rationale underlying international protection is to serve as "surrogate" shelter coming into play only upon failure of national support. When available, home state protection is a claimant's sole option.
International refugee law was formulated to serve as a back-up to the protection one expects from the State of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other States becomes engaged."
"If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to the country as a whole is well-founded."
See Black CJ at p 270 and Whitlam CJ at p 280.
"Stated another way for clarity, would it be unduly harsh to expect this person, who is being persecuted in one part of his country, to move to another less hostile part of the country before seeking refugee status abroad?"
The Jurisdiction of the Appellate Authorities
"A person who is refused leave to enter the United Kingdom under the [Immigration Act 1971] may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the [1951 Geneva Convention and its Protocol]".
"334 An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom; and
(ii) he is a refugee, as defined by the Convention and Protocol; and
(iii) refusing his application would result in his being required to go (whether immediately or after the time limited by an existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
336 An application which does not meet the criteria set out in paragraph 334 will be refused.
343 If there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution, and to which it would be reasonable to expect him to go, the application may be refused."
"Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention."
Grounds not referred to in the notice of appeal
"In an application for asylum the applicant has to discharge a burden of proof, place before the adjudicator the material upon which he seeks to rely and to advance the arguments which he considers assist his case. In the present matter the only argument of substance which was made to the special adjudicator was that Colombo was an unsafe place for the applicant and that it gave rise to a fear on his part that if he stayed there he would be subjected to persecution of a relevant kind.
The adjudicator did not accept the applicant's evidence on that point and did not accept the only submission that was made to him. Under those circumstances, other categories of reasonableness not having been raised before him, it is not surprising that the adjudicator did not specifically refer to them."
(1) The applicant had no relatives to accommodate, support and protect him in Colombo;
(2) He had no employment prospects or capacity for independent support in Colombo, and had lived off the proceeds of his mother's jewellery until he left there;
(3) He had no secure accommodation in Colombo and had spent the best part of six weeks moving from address to address to avoid the attention of the authorities; he had arrived in Colombo dressed as a Sinhalese to avoid suspicion but he did not read Sinhalese and had language difficulties;
(4) There was a risk of repetition of his detention in May 1993 in Colombo at the hands of the authorities having regard to his family background, previous history and the understandable interest of the authorities in Colombo in suspect Tamils.
Order: Application dismissed. No order as to costs. Legal Aid taxation of the applicant's costs.