PUCL Bulletin, November 2002

Discrimination against Tamils in the United Kingdom challenged

Excerpts:
(1) The Tamil Information Centre (TIC) launched a legal challenge against two Authorisations issued in April 2001 under Section 19 (D) of the Race Relations Act 1976, which had the effect of discriminating against Tamils and other communities in the United Kingdom.

(2)The Race Relations Act outlaws discrimination by public institutions, such as in law enforcement by Police and decision-making by Immigration/Home Office officials. It is unlawful for a public authority to discriminate on grounds of colour, race, nationality or ethnic or national origin.

(3) However, the Act contains a section (Section 19D) which permits the Minister to authorise discrimination on grounds of nationality or ethnic or national origin in carrying out immigration and nationality functions. The Secretary of State for the Home Department exercised his powers under Section 19D in April 2001 and issued two Authorisations.

(4) The First Authorisation permits discrimination against unnamed nationalities. It says that if there is statistical evidence showing a pattern or trend of breach of immigration laws by a particular nationality or if there is intelligence information which suggests that a significant number of persons of that nationality have breached or will attempt to breach the immigration laws, then the immigration officers may discriminate against a member of that nationality.

11)The officers could

12) subject a person from the group to a more rigorous examination than other persons in the same circumstances or detain him/her pending examination;

13) decline to give the person notice of grant or refusal of leave to enter the UK and impose a condition or restriction on the person's leave to enter the UK or his temporary admission;

if the person is outside and wishes to travel to the UK, by reason of the person's national or ethnic origin, refuse leave to enter the UK.

14) The First Authorisation also says that the Secretary of State may give priority to the consideration of claims for asylum from persons of a particular nationality or ethnic or national origins, if there are a significant number of claims for asylum from persons of that group which are unfounded or which raise similar issues in relation to the Refugee Convention or the Human Rights Convention.

15) This Authorisation permits serious discrimination on grounds of nationality and may be used virtually in any circumstance, without any conditions being satisfied for discrimination. It appears that under this Authorisation the courts will have to accept that discrimination against all persons of a nationality is authorised, if there is reliable evidence of any pattern or trend of abuse by persons sharing that nationality, however irrelevant or minor the abuse.

16) The Second Authorisation lists seven groups of people (Tamils, Kurds, Pontic Greeks, Roma, Somalis, Albanians, Afghans). It allows immigration officers to discriminate a person from the group seeking entry into the UK.

17) The officers could

18) Subject a person from the group to a more rigorous examination than other persons in the same circumstances or detain him/her pending examination;

19) Decline to give the person notice of grant or refusal of leave to enter the UK and impose a condition or restriction on the person's leave to enter the UK or his temporary admission;

if the person is outside and wishes to travel to the UK, by reason of the person's national or ethnic origin, refuse leave to enter the UK.

20) The TIC, with the assistance of Messrs Winstanley-Burgess Solicitors, Simon Cox and Robin Allen QC launched a challenge in the High Court pointing out that discrimination of the Tamils under the above provisions is illegal. The Race Relations Act permits the Minister to authorise discrimination only on grounds of nationality or national or ethnic origin. It does not allow authorisation of discrimination on grounds of race or colour.

21) The TIC's argument is that Tamils fall into the category of 'race' by reason of cultural distinctiveness, shared common ancestry and common physique differing from other South Asians. The term 'Tamils' is used to refer to all Tamils including those from India, Sri Lanka, Malaysia, Singapore, South Africa, Mauritius and several other countries.

22) The TIC also contended that these authorisations deny Tamils "equal treatment before the law" and their human rights, particularly under Article 5 (right to liberty) and Article 8 (right to family and private life) of the European Convention on Human Rights.

23) On 27 February 2002, Mr. Justice Sullivan, a High Court judge granted permission to Judicially Review the Home Secretary's authorisations and held that the Tamils have an arguable case against the Secretary of State for making such Authorisations and has observed that there are substantive issues for decision.

24) On 11 June 2002, the Secretary of State informed Parliament that the Second Authorisation, which specified seven ethnic groups including Tamils, has been withdrawn. This means that the other six communities have also benefited from the legal action by the TIC.
The case was heard by the High Court on 12 June 2002 on the First Authorisation and completed on the same day. The order was reserved. It was expected to be delivered within six weeks.

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