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Refugee and Spycatcher decisions

01 January 1992

Human rights activists and lawyers expressed their dismay at the rejection by the European Court of Human Rights of a claim by Tamil refugees that Britain had violated their human rights by sending them back to Sri Lanka. On 30 October 1991 the Court ruled that there was no violation of Article 3, which prohibits inhuman or degrading treatment, or of Article 13, which demands an effective domestic remedy for alleged violations.

The five Tamils fled from Sri Lanka to Britain in 1987 and claimed political asylum. They were refused, and after applications for judicial review of the decision were finally rejected by the House of Lords; the men were returned to Sri Lanka in February 1988. There, four of them were detained and tortured or ill-treated by the authorities. Later, an appeal succeeded and the Home Office was obliged to readmit them. But the Court decided that the evidence the Home Office had in February 1988 did not establish that their position was any worse than that of other Tamils; there was a possibility of detention and ill-treatment, but that did not oblige the Home Office to let them stay. The Court also decided that judicial review of a decision not to grant asylum was an adequate remedy, even though it did not allow the court to decide that the Home Office was wrong in refusing asylum.

The Tamils' solicitor, Chris Randall, spoke for many when he said: "I fear the judgment has a lot to do with European politics and very little to do with human rights."

There was further disappointment over the decision, a week later, that the injunctions preventing publication of extracts from Spycatcher on grounds of national security did not violate Article 10 of the Human Rights Convention, which guarantees freedom of speech, until the book had been published elsewhere. The Court held that considerations of national security were legitimate to stop publication by the Observer and others, until publication in the US and elsewhere rendered such considerations impractical.

Vilvarajah v United Kingdom, ECHR, 30.10.91; Observer v United Kingdom, ECHR.