The more things change…

This court has before it two applications for bail by Tamils, Vaithialingham Skandarajah and Nadarajah Vilvarajah. Before dealing with those applications I would like to try and clear up two fundamental misunderstandings about what it was that this court decided on 12th October 1987.

Reading the newspapers the next day and listening to the radio and television (with, I am bound to say, the notable exception of Law In Action) as far as I could make out either no-one had read the judgment – this, I am bound to say, included the Secretary of State, who broadcast on the radio at one o’clock – or they did not want to understand the judgment. So let me make it quite clear what we decided – or rather what we did not decide.

We did not hold that any of the Tamils were genuine refugees. We did not hold that any of the Tamils were entitled to asylum. What we did do was to set out the scheme of the relevant immigration rules which, as we saw it (I am not sure how much dispute there is about this aspect), went in two stages. First the Secretary of State had to examine whether the applicant was a refugee, based on the formula to be found in the Convention of well founded fear of persecution on various grounds. Secondly, if he was a refugee as defined in the Convention, the Secretary of State then had to consider whether or not he was going to grant him asylum. The fact that he was a refugee did not entitle him to asylum. The only circumstance in which he, being a refugee, was entitled to asylum was if he could bring himself within Article 33 of the Convention, which adopted an entirely different formula related to fear of death or loss of freedom.

What we said was that when the Secretary of State said that none of the Tamils were even refugees, let alone entitled to asylum, he had applied the wrong test, and that each of the Tamils was entitled to have the question of whether or not he was a refugee decided in accordance with the right test, although it might very well be – we had no means of knowing – that, applying the right test, the Secretary of State would still have concluded (this time rightly) that the Tamils were not refugees. But it was not for us to decide that and we did not decide it. We certainly never approached the question of whether they were entitled to asylum, because that was the next stage down the line.

I hope, without any great confidence, that, having set it out again, it may be understood what it was that we were deciding. It is in the judgment, and nothing that I have said now is intended to modify one word of the judgment which we gave on that occasion. I am merely indulging in an effort at communication, but as I say without any great confidence that I have succeeded.

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