Task 5 (Yellow Group) María Gabriela González

1. R v. Secretary of State for the Home Department, Ex parte Sivakumaran

This particular case happened in the United Kingdom. The application was made by six Sri Lankan
men, belonging to the Tamil ethnicity. The Tamil ethnicity is a very big ethnic group, having about
77million members in actuality. The applicants, requested political asylum in the U.K pursuant to
the provisions of paragraph 73 of the Statement of Changes in Immigration Rules (1983) (H.C.
169). The paragraph in question stated that the United Kingdom must not be obliged to do
something contrary to them believes by the statute of refugees. The applicants stated that their
request was on the ground that they had a well-founded fear of being persecuted for reasons of
race if they were returned to Sri Lanka. The Secretary of State interpreted the expression "well-
founded fear" in the definition of "refugee" in article 1A(2) of the Convention and Protocol
connecting to the Status of Refugees as meaning that the applicant for refugee status had to found
not only fear of persecution but also that his or her was objectively justified. In this case, the
secretary of state concluded that the applicants' fears were not "wellfounded" within the terms of
the Convention and Protocol and refused their applications for asylum.

The House of Lords took the case, and appealed in favor of what the Secretary of State had
appealed. . The Court agreed in the fact that there was no “real risk of the applicants if they
returned to Sri Lanka”. They concluded that there must be an objective measurable risk for the
applicants, and that the applicants must demonstrate the veracity of this risk. The utilization of
article 1(A)(2) of the United Nations Convention relating to the Status of Refugees (Geneva, 28 July
1951 TS 39 (1954) Cmd 9171) and the amendment made by the Protocol dated 16 December 1966
(New York, 31 January 1967, TS 15 (1969), Cmnd 3906) was very important in this case . This case
also stated a referent to future cases on the characteristic of “Bruden and standard of proof”,
which affirms that in refugee claims, the judge needs to decide if, based on the truth of the
applicant's statements, the claim will be considered credible.

2. Islam v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and
Another, ex parte Shah [1999] UKHL 20, 25 March 1999 (UK House of Lords)

This particular case was about a 45 year old woman with two kids, who arrived to the United
Kingdom in 1991. She had a very violent husband, and, due to trying to avoid a fight between two
very strong political group participants, she had a hostile relationship with one of the political
group. She had infidelity false allegations made towards her, which resulted in her husband
sending her two times to the hospital. Her family members, in this case her brother, where
threatened if they were seen helping her or talking to her. She arrived to the united Kingdom
claiming asylum and she relied on two Convention grounds under article 1A(2), namely a well
founded fear of persecution for reasons of (1) membership of a particular social group and (2)
political opinion.

Her claim was first rejected because, back in her country of Pakistan, she was not part of a
minority or persecuted religious or ethnic group. In this case, Lord Hope of the House of Lords
stated that “The unchallenged evidence in this case shows that women are discriminated against
in Pakistan. I think that the nature and scale of the discrimination is such that it can properly be
said the women in Pakistan are discriminated against by the society in which they live. The reason
why the appellants fear persecution is not just because they are women. It is because they are
women in a society which discriminates against women. In the context of that society I would
regard women as a particular social group within the meaning of article 1A(2) of the Convention.”
On the other hand, other Lords stated that this discrimination or demeanour towards woman was
very deep in the culture of the Pakistanian population. This meant that this woman where
discriminated not because of the fact that they were woman, but because they refuse to accept
the laws imposed by this country towards them. The Court of Appeal rejected these claims but,
both of the women of the cases were granted exceptional leave to remain in the United Kingdom.
The case was very important because it set a precedent towards future cases in the matter of what
can be considered as a “social” or persecuted group. This case questioned the viability of accepting
“women” as a social group. Moreover, it showed that if someone is punished in an excessive
manner it may be described as persecution.

3. ECtHR – Saadi v. Italy, Application No. 37201/06 , 28 February 2008

This particular case involved a Tunisian man, who had lived in Italy between the years 1996
through 1999. On 9 October 2002 he was arrested on suspicion of involvement in international
terrorism. On 9 May 2005 the Milan Assize Court sentenced him to four years and six months’
imprisonment on the charges of criminal conspiracy, forgery of a large number of documents, and
receiving stolen goods. The Assize Court also ordered that he was to be deported after serving his
sentence .The applicant alleged that enforcement of a decision to deport him to Tunisia would
expose him to the risk of being subjected to treatment contrary to Article 3 of the Convention and
to a flagrant denial of justice (Article 6 of the Convention). In addition, the measure concerned
would infringe his right to respect for his family life (Article 8 of the Convention) 2 SAADI v. ITALY
JUDGMENT and had been taken in disregard of the procedural safeguards laid down in Article 1 of
Protocol No. 7.

On 11 August 2006 the applicant requested political asylum, alleging that he had been sentenced
in his absence in Tunisia for political reasons and that he feared he would be subjected to torture
and “political and religious reprisals”. The head of the Milan police authority declared the request
inadmissible, on the ground that the applicant was a danger to national security, by a decision of
16 August 2006 which was served on the applicant on 14 September 2006.

In this case, the application was partly successful. The Court held that enforcement of the
applicant’s deportation to Tunisia would breach Article 3 ECHR. The Court further held that it was
not necessary to examine whether enforcement of the deportation of the applicant would
constitute a violation of Articles 6 and 8 and Article 1 of Protocol No. 7 ECHR. The Court awarded
the applicant EUR 8,000 for costs and expenses and dismissed the applicant’s request for
damages, on the basis that the Court’s finding that his deportation would constitute a breach of
Article 3 ECHR constituted sufficient just satisfaction.

Also, the court utilized several articles from the European convention of Human rights, such as
Article 3 ECHR and Article 6 ECHR. This articles supported that the applicant was going to be
subject of discrimination and mistreating if he was to be deported to Tunisia. “The applicant
submitted that the enforcement of his deportation to Tunisia would expose him to the risk of
treatment contrary to Article 3.”