STARRED Secretary of State for the Home Department v D (Tamil)

Factual and Procedural Background

The Appellant, a citizen of Sri Lanka born in 1975, arrived in the United Kingdom in 1996 with a false passport and claimed asylum. His initial asylum claim was refused in 1996, and an appeal was dismissed in 1998 after an adjudicator found his account of persecution not credible and concluded that returning him to Sri Lanka would not breach the Refugee Convention. The Appellant did not pursue further appeals or judicial review at that time and remained in the UK without a right to stay, with no removal action taken by the Secretary of State.

Following the enactment of the Human Rights Act 1998 in October 2000, new solicitors submitted a fresh asylum claim on the Appellant's behalf, which was declined as not sufficiently different from the original claim. The Secretary of State refused exceptional leave to remain but informed the Appellant of a right to appeal on human rights grounds, serving a One-Stop Notice. The human rights appeal, based on alleged breaches of Articles 2, 3, 5, 6, and 14 of the European Convention on Human Rights (ECHR), was heard by a second adjudicator in 2001 and dismissed. The Appellant then appealed to the Tribunal on human rights grounds.

The Tribunal granted leave to appeal due to important issues including the extent to which a second adjudicator should rely on findings made by a previous adjudicator in relation to the same appellant. The hearing took place in mid-2001 with submissions from both parties.

Legal Issues Presented

1. What weight should a second adjudicator give to the findings of a previous adjudicator in a subsequent human rights appeal involving the same appellant?
2. Does the removal of the Appellant, a Tamil from Sri Lanka, to Sri Lanka breach Articles 3, 5, 6, 8, or 14 of the European Convention on Human Rights?
3. What is the extraterritorial effect of the European Convention on Human Rights, particularly Articles 5 and 6, in the context of removal to a non-signatory state?
4. Whether generalised claims of discrimination against Tamils in Sri Lanka can engage Article 14 in conjunction with other Convention rights to prevent removal.

Arguments of the Parties

Appellant's Arguments

• The second adjudicator erred by relying heavily on the first adjudicator's findings without making an independent assessment of the Appellant's human rights claim, especially since the Appellant gave oral evidence before the second adjudicator but not the first.
• The first adjudicator did not fully consider or make findings on lesser forms of ill-treatment or specific claims such as being forced to eat cow dung and drink urine during detention.
• The scars on the Appellant's body, although admitted to be caused by accident, should be relevant as they might expose him to risk of suspicion as an insurgent upon return to Sri Lanka.
• There is a real risk of ill-treatment amounting to breaches of Articles 3, 5, 6, and 14 of the Convention if removed to Sri Lanka, based on evidence of widespread ill-treatment of Tamils and discrimination.
• Generalised discrimination and cumulative factors should be considered together to establish a breach of Convention rights.

Respondent's Arguments

• The first adjudicator's findings are not binding but are a relevant and authoritative assessment of the facts at the time and should only be departed from for good reason, such as new evidence or changed circumstances.
• The Appellant failed to establish a credible history of ill-treatment or persecution, and the scars do not indicate risk as they were caused accidentally.
• There is no reliable evidence of widespread torture or ill-treatment in Colombo, and the risk of detention or ill-treatment upon return is speculative and not sufficient to engage Article 3.
• The European Convention on Human Rights does not impose an absolute prohibition on removal to non-signatory states unless there is a real risk of treatment breaching Article 3 or flagrant denial of rights under Articles 5 or 6.
• Generalised discrimination against Tamils does not amount to degrading treatment under Article 3 or justify preventing removal under Article 14.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
TI v UK	Consideration of human rights claims in removal cases involving Sri Lankan Tamils	Found not directly relevant as it concerned return to Germany, not the merits of return to Sri Lanka
R v SSHD ex parte Adan [2001] 2 WLR 143	Interpretation of the autonomous meaning of the European Convention on Human Rights and relevance of other countries' jurisprudence	Used to caution against concluding that practices in other European countries breach the Convention
Vilvarajah v United Kingdom (1991) 14 EHRR 60	Political situation alone insufficient to establish risk of ill-treatment under Articles 2 and 3	Applied to reject general claims of political persecution without specific evidence
Murray & Ors v United Kingdom (1996) 22 EHRR 29	Standards for lawful detention under Article 5	Held that detention for identification purposes does not breach Article 5
Brogan & Ors v United Kingdom (1998) 11 EHRR 117	Detention for police investigations related to terrorism and Article 5	Detention for confirming suspicions did not breach Article 5
Ladd v Marshall [1954] 1 WLR 1489	Admissibility of new evidence on appeal	Distinguished as inapplicable because the second appeal is a new appeal rather than a rehearing
Kudla v Poland (2000)	Minimum level of severity for ill-treatment to engage Article 3	Applied to assess whether prospective ill-treatment meets threshold for breach
Bensaid v UK (2001)	Assessment of real risk and severity of harm under Article 3	Referenced for the high threshold required to establish real risk of ill-treatment
R v SSHD ex parte Mahmood [2001] 1 WLR 840	Balancing immigration control against interference with Convention rights under Article 8	Used to support proportionality in removal decisions impacting private life
Osman v UK (2000) 29 EHRR 245	Scope of State obligations under Article 2 to protect life	Clarified that obligations do not impose impossible or disproportionate burdens on authorities
Soering v UK (1989) 11 EHRR 439	Limits of Article 6 protection in extradition cases	Held that risk of unfair trial abroad must be flagrant to engage Article 6
Drozd and Janousek v France and Spain (1992) 14 EHRR 745	Jurisdictional limits of Convention and responsibility for acts outside signatory states	Confirmed no obligation to impose Convention standards on non-signatory states except in cases of flagrant denial
Monstaquim v Belgium (1991) 13 EHRR 802	Application of Article 14 in expulsion cases	Cited but noted claim was not upheld
C v Belgium (96/25)	Application of Article 14 in expulsion cases	Cited but noted claim was not upheld
Ex parte Danaie [1998] Imm AR 84	Principles relating to findings of fact in immigration appeals	Referenced in support of finality and consistency of findings absent good reason for change

Court's Reasoning and Analysis

The Tribunal began by setting out guidelines for how a second adjudicator should approach a determination previously made by a first adjudicator in relation to the same appellant. The first adjudicator's findings stand as an authoritative assessment of the facts and credibility at the time they were made and are not binding but should only be departed from for good reason such as new evidence or changed circumstances. Facts arising after the first determination may be considered freely, but facts that could have been raised previously should be treated with caution, especially if they are personal to the appellant, to avoid abuse of process or credibility issues.

Applying these principles, the Tribunal found that the second adjudicator properly started from the first adjudicator's findings which had not been challenged. The Appellant's scars were considered but, absent medical evidence describing their nature or showing risk, the scars alone did not establish a real risk of ill-treatment or persecution. The Tribunal rejected the Appellant's submissions that the first adjudicator's findings were incomplete or that lesser forms of ill-treatment were implicitly accepted, clarifying that disbelief of a claimant's story on the evidence does not imply acceptance of alternative ill-treatment not alleged.

Regarding the general human rights claims, the Tribunal reviewed extensive country evidence, noting its limitations and partisan sources. It found no reliable evidence of widespread torture or ill-treatment of Tamils in Colombo sufficient to engage Article 3. The risk of detention or ill-treatment upon return was speculative and not substantial. The Tribunal emphasised that the European Convention on Human Rights does not impose on signatory states a duty to prevent removal to non-signatory states unless there is a real risk of treatment breaching the absolute prohibition under Article 3 or a flagrant denial or gross violation of rights under Articles 5 or 6.

The Tribunal considered the extraterritorial effect of the Convention, concluding that while the decision to remove is an act within the jurisdiction of the signatory state, the Convention does not generally prohibit removal to countries that do not observe the Convention's standards, except in extreme cases. It rejected arguments that Articles 5 and 6 impose absolute protection against removal to non-signatory states lacking fair trial or liberty guarantees, noting the lack of any case law supporting such a broad application.

On discrimination claims under Article 14, the Tribunal held that Article 14 is not free-standing and requires linkage to another Convention right. Generalised discrimination against Tamils in Sri Lanka was found insufficient to constitute degrading treatment or to lower the threshold for Article 3 protection. The Tribunal emphasised that Article 14 cannot be used to diminish the absolute protection of Article 3 or to create a new composite right. The evidence did not show a real risk of discriminatory ill-treatment amounting to a breach of the Convention.

Finally, the Tribunal rejected the Appellant's argument that cumulative minor breaches could combine to form a breach of the Convention, explaining that the Convention rights are individual and distinct, and there is no authority for combining separate minor breaches into a composite violation.

Holding and Implications

The Tribunal DISMISSED the Appellant's human rights appeal against removal to Sri Lanka.

This decision means that the Appellant does not have a right to remain in the United Kingdom on the basis of alleged breaches of Articles 3, 5, 6, 8, or 14 of the European Convention on Human Rights. The Tribunal confirmed that second appeals on human rights grounds must generally respect the findings of fact and credibility assessments of previous adjudicators unless good reasons exist to depart from them. The ruling clarifies the limited extraterritorial effect of the Convention in removal cases and affirms that generalised claims of discrimination and speculative risks of ill-treatment do not suffice to prevent removal to non-signatory states. No new precedent was established beyond the application of existing principles to the facts of this case.