European Court of Human Rights

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31668/05
by Mustapha Mohammed AHMED
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 14 October 2008 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 26 August 2005,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mustapha Mohammed Ahmed, is a Somali national who was born in 1985 and lives in Birmingham. He was represented before the Court by Ms G. Rashid, a lawyer practising in Birmingham with Sultan Lloyd Solicitors. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant arrived in the United Kingdom on 5 October 2002 and claimed asylum on 11 October 2002. This claim was refused by the Secretary of State on 9 June 2003. The applicant appealed to the Adjudicator who dismissed his appeal on 24 October 2003, inter alia on the ground that his return to Somalia would not breach Article 3 of the Convention. A further appeal to the Immigration Appeal Tribunal (“the IAT”) was rejected on 26 July 2004. On 4 March 2005, the IAT refused permission to appeal to the Court of Appeal. Renewed applications to the Court of Appeal were rejected on 18 April and 18 May 2005 respectively, the court finding on each occasion that there was no reasonable prospect of success.

On 26 August 2005 the applicant lodged an application with this Court and on 18 December 2006 the Government undertook not to remove the applicant pending the conclusion of the proceedings before the Court. The application was formally communicated to the Government for their observations on 19 December 2006.

COMPLAINTS

The applicant complained that it would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention if he were to be returned to Somalia. He also complained that the limited grounds for appeal against immigration decisions (on the basis of errors of law only) was in breach of Article 6 of the Convention.

THE LAW

I. ARTICLE 37 § 1 (b) OF THE CONVENTION

By letter dated 9 February 2007 the Government informed the Court that in light of the information provided by the applicant, they had reconsidered the case. Given that the applicant was a member of the Eyle minority clan, the Government accepted that his removal to Somalia would, in the present circumstances, give rise to a real risk of his being subjected to treatment in breach of Article 3 of the Convention. They decided not to proceed with the applicant's removal and would consider what leave to grant him.

The Court asked the applicant to indicate whether he wished to maintain his application. By letter dated 20 March 2007, the applicant stated that he did. The threat of removal to Somalia had been removed but the Government had not acknowledged any violation of his rights under Article 3; they had not indicated what status they would accord the applicant; and the applicant had not been afforded appropriate just satisfaction for pecuniary and non-pecuniary damage, costs and expenses. He further relied on Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted). The Directive meant Article 3 of the Convention had now to be regarded as a civil right within the meaning of Article 6. The Directive required Member States of the European Union to give subsidiary protection to a third country national when his removal would infringe Article 3 and subsidiary protection status entitled that person to a number of rights including access to employment, welfare payments and accommodation. The applicant had been deprived of those benefits. No redress had been provided.

On 10 May 2007 the applicant's representatives informed the Court that the applicant had been granted refugee status and given leave to remain for five years. The applicant's representatives and the Government submitted the relevant decisions and immigration papers on 29 May 2007 and 30 May 2007 respectively.

On 19 May 2008, the Government submitted that the case should be struck out of the list. First, they had acknowledged that the decision to remove the applicant would have given rise to a breach of Article 3. For any time when the applicant was under threat of removal, the Government submitted that this was not in itself a breach of Article 3. Second, the precise immigration status of the applicant was not a matter for the Court and concerned no Convention issue. The applicant would not be removed and had five year leave to remain. This would be kept under review depending on the developments in Somalia. Third, since threat of removal was not a violation of the Convention, no losses could be claimed for the period when the applicant was under threat of removal. Fourth, any claims under Council Directive 2004/83/EC were a matter of EC law and outside the jurisdiction of the Court.

The Court recalls that Article 37 § 1 of the Convention provides as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court further recalls that in order to ascertain whether Article 37 § 1 (b) applies to the present case, it must answer two questions in turn: first, whether the circumstances complained of directly by the applicants still obtain and, second, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (El Majjaoui and Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 30, 20 December 2007).

As to the first question, the Court the Court notes that the applicant has been granted refugee status and leave to remain in the United Kingdom for five years. Therefore, as matters stand, the applicant does not face any real and imminent risk of removal to Somalia (Sisojeva and Others v. Latvia [GC], no. 60654/00, §§ 97-102 ECHR 2007 ....). Clearly, the circumstances complained of no longer obtain. As regards the second question, the Court finds that granting the applicant refugee status and leave to remain for five years also provides adequate and sufficient redress for the applicant (El Majjaoui, cited above, § 33). In this connection, the Court also shares the Government's view that it is not necessary to provide redress for any pecuniary or non-pecuniary damage incurred by the applicant while he was under threat of removal to Somalia. Finally, the Court reiterates that it is not its task to apply directly the level of protection offered in other international instruments. The applicant's submissions on the basis of Directive 2004/83/EC are outside the scope of its examination of the present application (NA. v. the United Kingdom, no. 25904/07, § 107, 17 July 2008).

Having regard to the above, the Court finds that both conditions for the application of Article 37 § 1 (b) of the Convention are met. The matter giving rise to the applicant's complaints can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of the application under Article 37 § 1 in fine.

Accordingly, the application should be struck out of the Court's list of cases.

II. APPLICATION OF RULE 43 § 4 OF THE RULES OF COURT

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicant claimed a total of GBP 10,629.69 in legal costs and expenses, which is approximately EUR 13,466.61. This comprised costs and expenses incurred before the Court and those incurred before the Court of Appeal. It covered the costs and expenses of the applicant's solicitor and the fees of counsel, less GBP 405 already received from the applicant. The costs and expenses of the applicant's solicitor comprised costs of GBP 4,950 and expenses of GBP 62.81. The hourly rate was GBP 180. Counsel's fees amounted to GBP 6,021.88 (inclusive of value-added tax (VAT)). This included GBP 2,115 in fees incurred before the Court of Appeal, including six hours' work and attending a hearing via video link. The remaining GBP 3,906.88 in counsel's fees covered nineteen hours' work before this Court. Counsel's hourly rate was GBP 175 before VAT.

The Government considered the hourly rate of GBP 180 charged by the applicant's solicitors to be excessive, particularly given the involvement of counsel. They submitted that a more reasonable hourly rate would have been GBP 120 per hour. They considered that a total award of GBP 9,000 (inclusive of any VAT payable) would be a reasonable sum to award.

The Court recalls that in order for costs and expenses to be recoverable under Article 41 of the Convention, it must be established that they were actually and necessarily incurred, and reasonable as to quantum (Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 VIII; D.G. v. Ireland, no. 39474/98, § 128, ECHR 2002 III). In addition, it is in principle open to applicants to seek costs and expenses incurred before the domestic courts but the Court will only make such an award where these proceedings were concerned with preventing or seeking redress for the alleged violation of the Convention (King v. the United Kingdom, no. 13881/02, § 52, 16 November 2004; Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, ECHR 2007 ...; I.J.L., G.M.R. and A.K.P. v. the United Kingdom (Article 41), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). The Court finds this requirement was met in the present case since the Court of Appeal proceedings were directly concerned with preventing the applicant's proposed removal to Somalia and he relied on Article 3 in those proceedings. Having regard to the complexity of those proceedings, it considers that the applicant's costs and expenses in relation to them should be met in full.

For the Strasbourg costs, the Court notes the lack of complexity of proceedings and in particular the fact that it has decided to strike the case out of its list at a relatively early stage in proceedings. However, it also notes that the total number of hours work done by the applicant's representatives reflects this lack of complexity and the Court accepts that these were actually and necessarily incurred. It does not accept the Government's submission that the hourly rate for the applicant's solicitor was excessive. It therefore considers that the applicant's costs and expenses for proceedings before this Court should also be met in full.

The Court thus awards him EUR 13,467, inclusive of VAT, less EUR 850 already received in legal aid from the Council of Europe (a total sum of EUR 12,617).

For these reasons, the Court

1. Decides unanimously to strike the application out of its list of cases;

2. Holds unanimously

(a)  that the respondent State is to pay the applicant EUR 12,617 (twelve thousand six hundred and seventeen euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Lawrence Early Lech Garlicki
Registrar President