European Court of Human Rights
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URL: http://www.bailii.org/eu/cases/ECHR/2008/221.html
Cite as: [2008] ECHR 221
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FOURTH SECTION
DECISION
Application no.
45936/06
by M.
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 26 February 2008 as a Chamber composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Stanislav Pavlovschi,
Ljiljana Mijović,
David
Thór Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
judges,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 17 November 2006,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant the applicant anonymity under Rule 47 § 3 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, “M.”, is an Eritrean national who was born in 1971 and lives in Kidlington. He was represented before the Court by Ms E. Chyrum, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms E. Willmott.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 14 August 2006 the applicant arrived in the United Kingdom. He had been issued with a student visa on 6 October 2005 which was valid until 1 September 2006. On arrival, the immigration officers were not satisfied that he had come to study or that he would return to Eritrea on completion of his course. They therefore cancelled his entry clearance and proposed his removal to Eritrea.
On 17 August 2006 the applicant claimed asylum. At his asylum interview he claimed that he would be arrested upon return to Eritrea for two main reasons; firstly, on the ground that he was an army deserter when he left Eritrea and secondly, due to his having left the country illegally.
On 24 August 2006 the Secretary of State refused the applicant’s asylum claim on the basis that he had either exaggerated or fabricated many aspects of his account. In particular, it was found that he would not be perceived as an army deserter in Eritrea as he had completed the minimum requirement of eighteen months’ military service before leaving the country. Furthermore, it was noted that the applicant had willingly left Eritrea illegally and, as an educated man, would have been aware of the risks involved. It was the Secretary of State’s view that the applicant would not be regarded as a traitor on the sole basis that he had left his country illegally.
On 6 September 2006 an Immigration Judge at the Asylum and Immigration Tribunal (AIT) dismissed the applicant’s appeal predominantly on the basis that he was not credible. The applicant’s claim to be an army deserter was rejected as it was found that he had completed his compulsory eighteen months’ service by August 2005 and was therefore not a deserter when he left Eritrea in 2006. Moreover, it was not accepted that the applicant had left Eritrea illegally as, inter alia, it was considered impossible that he would have been able to pass through ten check-points and cross the border into Sudan without proper documentation. It was noted, however, that the Home Office’s Country Information and Policy Unit (CIPU) report identified men under the age of fifty as a category of citizens who were routinely denied exit visas. The Immigration Judge also acknowledged that the latest country guidance in the case of KA [2005] UKAIT 00165, highlighted that “persons of eligible draft age, which includes men between the ages of eighteen and fifty, are currently at a real risk of persecution as well as treatment contrary to Article 3 unless they can be considered to have left Eritrea legally.”
On 12 September 2006 a Senior Immigration Judge at the AIT dismissed the applicant’s appeal on the basis that the Immigration Judge had the advantage of hearing oral testimony and was entitled to make credibility assessments, and that the applicant’s grounds of appeal raised no arguable errors of law.
On 2 November 2006 a High Court Judge dismissed the applicant’s application for reconsideration of the Senior Immigration Judge’s decision under section 103A of the Nationality, Immigration and Asylum Act 2002 on the basis that there had been no error of law and that, in any event, the application was out of time and there were no good reasons to extend time.
The applicant was subsequently issued with directions for his removal to Eritrea on 21 November 2006.
COMPLAINT
The applicant complained under Articles 2 and 3 of the Convention that he would be indefinitely detained and subjected to torture, inhuman or degrading treatment which might lead to his death if returned to Eritrea.
THE LAW
By a letter dated 22 February 2007 the Government informed the Court that, following consideration of the communication of this application to them on 4 December 2006 and in particular country background information cited therein, the applicant had been granted asylum and permission to stay in the United Kingdom for a specified period.
By a letter dated 30 March 2007 the applicant’s representative communicated the applicant’s wish to withdraw his application against the United Kingdom.
The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 and to strike the case out of the list. The interim measure indicated under Rule 39 of the Rules of Court should also be lifted.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence Early Lech Garlicki
Registrar President