My long standing colleague in Chambers, T. Upali Cooray, who died on 21st August 2009 aged 69 whilst fighting a long illness, demonstrated many of the best traditions of the radical Bar as an activist and lawyer. Although a Marxist to the day of his death- his coffin at his memorial service was draped in a red flag with hammer and sickle- in his practical dealings with people he was pragmatic and compassionate. His activism over decades found expression both in Sri Lanka, where he was born and to which country he always retained strong ties, and in the United Kingdom, who became his home in the 1960s.
In Sri Lanka Upali cut his teeth as an activist and lawyer fighting communal division and promoting the rights and interests of workers. He was a youth league member and then a member and significant figure in the leftist Lanka Sama Samaja Party (“LSSP”). When the LSSP in June 1964, decided to enter into coalition politics, those of the Left Tendency of LSSP including Upali, split away and formed the LSSP(R), the “R” standing or “Revolutionary” Upali being elected to the Central Committee of the new party. Alongside party politics Upali remained constantly involved to seeking to avoid division between Sinhalese and Tamil and in seeking transformation of the conditions faced by working class Sri Lankans by organising, educating and empowering oppressed people. He was entirely unafraid to put himself at risk for others. His friend Rajan Philips recalls an incident in which Upali, riding a motorcycle, saw a man beating a woman at the roadside. He stopped in his tracks to confront the man, who ultimately promised to refrain from further violence against his wife. Much later Upali and colleagues actively opposed the fanning of communal divisions, seeking to protect Tamils and demonstrate that ordinary Sinhalese people did not support this mindless violence against them. In July 1979 he was active in the Movement for Inter-Racial Justice and Equality founded by Father Pierre Caspersz. In July 1983 ethnic pogroms against Tamils broke out following the ambush and killing of 13 soldiers by Tamils. On “Black Friday”, 29th July 1983 Upali and others had manned a union office in Colombo to exchange information by telephone regarding the massacres and attempts to protect Tamils, working with, among others, some of the local Buddhist clergy- an example of Upali’s pragmatism and willingness to make common cause with people of shared humanitarian principles but diametrically different philosophical or religious foundations. Returning home Upali and a few others were faced with a mob pursuing a Tamil schoolboy, wanting to tie him to a tree in front of Upali’s home and burn him. Upali went to remonstrate with the mob, which shouted him down. However his example, and his popularity with his neighbours, led a well built neighbour to join the intervention and the schoolboy survived. Whilst less involved in party politics Upali continued his involvement in organisation, education, and empowerment of others. He helped in setting up a Women’s Centre and a Legal Advice Centre in the Katunayaka Free Trade Zone. He was a founder of the Committee for Democracy and Justice in Sri Lanka, whose aims include the achievement of a Sri Lankan society without arbitrary arrest, torture or disappearance, in which persons are equal before the law and subject to its rule regardless of economic status, caste, or creed, in London in 1988 at the height of a repression by the Sri Lankan government of Ranasinghe Premadasa which resulted in the disappearance of more than 60,000 people.
In the United Kingdom Upali was no less active, though less at risk of serious violence. He practiced at the Bar for over thirty years, during which he was repeatedly involved in leading cases concerned with immigrants and asylum seekers, a field of practice which had scarcely existed earlier. In R v SSHD ex p. Thirukumar (1989) Imm AR 402 he represented one of four asylum appellants who successfully argued that the decision making process, in which they were not told the recommendation to the Home Office of the individual immigration officers who had interviewed them, and so were unable to address these, and were not permitted copies of the official record of their own past evidence, was unfair. R v SSHD ex p. Hanif Ahmed (1999) Imm AR 390, QBD Upali secured an important recognition of the extent of protection afforded by refugee law to the right of thought, conscience, and religion. In R (Wani) v SSHD [2005] EWHC 2815 (Admin); [2006] INLR 234, a decision which echoes Upali’s involvement in key early cases concerning fairness in refugee cases, Upali secured judicial disapproval of a remarkably regressive and ill-considered process introduced in the new Asylum and Immigration Tribunal, whereby claimants able to establish that an earlier decision was erroneous in law were not permitted to know why the Tribunal accepted this, a prerequisite to their further conduct of the case.
Beyond this level of continuing achievement Upali consistently practised in a humane and pragmatic way. One example which has emerged since his death is as follows. Upali was instructed to do a bail application at Yarl’s Wood in a case which everyone considered so hopeless that no accommodation arrangements could be made prior to the hearing. He obtained bail after remaining at Yarl’s Wood until a dark and wintry 1700 when the Immigration Judge indicated a willingness to grant bail, save for the fact that the client by that time of day had no way to get from Yarl’s Wood to Bedford and then to Heathrow, to the sole office able to take responsibility for her accommodation. The Presenting Officer suggested that bail therefore be refused as transport to Heathrow in an acceptable time was impossible, unless Upali was minded to withdraw the application. Upali told the Immigration Judge that he (Upali) personally was going to drive the client to Heathrow immediately and that bail therefore had to be granted and Upali did so, stopping at Heathrow to point out in categorical terms to reluctant occupant of the responsible office that the client was vulnerable and their duty meant accommodating her that night, not leaving her to sleep in the terminal to avoid resolving her case before the shift changed. He then drove to Chambers, picked up papers, and went home to prepare for the next day.
In addition to maintaining a busy practice he taught law for many years at Guildhall Polytechnic, later Guildhall University and then part of London Metropolitan University. He was a stalwart of Mitre House Chambers and an often unrecognised contributor to its present recognition as one of the main sets of barristers in immigration and asylum. Within Chambers he was strongly supportive of colleagues and in particular of the most junior members of Chambers. Upali was in fact an educator and counsellor across and beyond his political and legal work, even whilst seriously ill taking time to write to a unnamed grand-nephew that “It is the disunity of the poor and the oppressed that creates the impression that the ruling elite is invincible. Time and again history has shown that the seemingly invincible and powerful rulers can be defeated when the people unite. Of course, the task of uniting the people is no easy undertaking. Although I cannot compel you to join me in this onerous task, I am hopeful that there will be many young men and women who will recognise the need to break with the backward and reactionary policies of past and dare to dream and have the courage to build a new society based on modernity, prosperity equality and justice. The history of social progress in the world is the history of the struggle of the poor and the dispossessed for equality and justice.”
Within Mitre House, Upali was consistently supportive for many years, by attention, counsel, time, and financial commitment. He was the senior immigration practitioner in Chambers and a living link with the foundational years of modern immigration and asylum law in England and Wales in the 1970s through the early 1990s. Latterly he was Co-ordinator of the Public Law Practice Group, though his illness never provided him time effectively to move into that role. Upali fought a long battle against terminal illness and by choice worked almost to the very end. I will greatly miss him as will all members, former members, and staff of Chambers.
Upali leaves his wife Sylvia, son Alex, and daughters Samantha and Jasmine.
Eric Fripp
10th October 2009