European Court of Human Rights

09 September 2008

FOURTH SECTION

Application no. 31653/08
by Abubaker Yousef MOHAMAD
against the United Kingdom
lodged on 1 July 2008

Statement of Facts

THE FACTS

The applicant, Mr Abubaker Yousef Mohamad, is a Sudanese national who was born in 1975 and lives in Longstanton.

A.  The circumstances of the case

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

The applicant was found in the United Kingdom on 17 May 2006, having arrived clandestinely, and applied for asylum on the same day. His claim was refused on 11 July 2006. The applicant appealed this decision and his appeal was dismissed on 15 November 2006.

In the appeal decision of the Asylum and Immigration Tribunal (“AIT”), the judge found that the applicant had previously claimed, and been refused, asylum in Turkey, and had spent a period of time in France en route to the United Kingdom. The judge accepted that the applicant’s village had been destroyed and members of his family killed by forces in 2003, but did not accept that this meant that the applicant was at risk of persecution as a result of his ethnicity. As regards his political affiliation, the appellant’s evidence included a letter written by the Chairman of the United Kingdom Office of the Justice and Equality Movement (“JEM”) on 3 August 2006, which confirmed that the applicant was a member of JEM and had participated in its activities in the United Kingdom. The judge considered that this did not amount to evidence that the applicant had been politically active in Sudan, or that the Sudanese authorities would be interested in his United Kingdom activities. As a result, he decided that the applicant was not at risk of persecution on the basis of his political affiliation either.

The applicant twice requested a High Court review of the Tribunal decision but was refused on 11 December 2006 and 13 March 2007.

The applicant’s representative submitted further information to the Home Office on the applicant’s behalf on 26 June 2007, which included a further letter from the Chairman of JEM, reaffirming the applicant’s membership of the organisation and activity in the United Kingdom, photos of the applicant participating in demonstrations in the United Kingdom against the Sudanese Government’s acts in Darfur, and a letter purporting to be from the General Directorate of the Public Security Service in Sudan, requiring the applicant to attend their offices on 22 February 2006. The Home Office responded on 3 June 2008, stating that the letter from JEM and the photos did not add any weight to the applicant’s claim, as it did not prove that he had been politically active in Sudan, or that he was of interest to the Sudanese authorities. No evidence had been provided that the Sudanese authorities were aware of the applicant’s activities in the United Kingdom. It was noted that there had been no independent and credible corroboration of the document purporting to be a summons. Further, the document could not prove that the applicant had come to the attention of the Sudanese authorities as a result of his political activity in the United Kingdom, since he was not thought to have become active in the United Kingdom until around November 2006, after his asylum claim failed; whereas the summons was dated 20 February 2006.

Although the Home Office response to the applicant’s further submissions was written after an attack on Khartoum by JEM, which occurred on 10 May 2008, no mention is made of this event or the situation in Khartoum subsequent to it. However, a Human Rights Watch report on Khartoum dated 18 May 2008 indicates that the Sudanese Government have carried out large numbers of arbitrary arrests and detentions following the attack, mostly of persons of Darfuri origin suspected to be involved with JEM. The report includes testimony from detainees who have been beaten and tortured, and suffered inhumane conditions of detention. Human Rights Watch gathered the names of 200 detainees, but reports from former detainees indicate that the number of persons arrested may be as high as 3,000.

B.  Relevant domestic law

On 14 November 2007, the House of Lords allowed the Secretary of State’s appeal against the Court of Appeal’s judgment in Secretary of State for the Home Department v AH (Sudan) and others (FC) [2007] UKHL 49.

AH and the other asylum seekers were nationals of Sudan who had fled from the Darfur area, where they had suffered persecution. The Secretary of State’s approach in each case was to refuse asylum because in his view it was not “unduly harsh” to expect the Darfuris to relocate elsewhere in the country – specifically to Khartoum, the capital, where they would be safe from persecution.

The AIT dismissed the asylum seekers’ appeals. The Court of Appeal, in its judgment (AH, IG & NM v Secretary of State for the Home Department [2007] EWCA Civ) found that the AIT’s determination was incorrect as a matter of law, in that the AIT had applied the wrong test in considering whether the asylum seekers would be able to lead “a relatively normal life” in Khartoum. Instead the AIT should have compared the conditions in Khartoum to those in which the asylum seekers had lived as farmers in Darfur.

In the House of Lords’ view the AIT had not erred in law in comparing the circumstances of the asylum seekers with those of other people living in Sudan rather than comparing their circumstances before they were persecuted with those they would have to live under in Khartoum. Since the AIT had not erred in law, and the House of Lords had no jurisdiction to substitute its own view of the facts for that of the AIT, the AIT’s determinations were restored.

The AIT decision (HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062) constitutes country guidance for Sudan, and stands for the propositions that: i) it is reasonable for Darfuris to relocate internally from Darfur to Khartoum; ii) persons of non-Arab Darfuri origin are not at risk on return solely because of their origin; iii) failed asylum seekers are not generally at risk upon return to Sudan; however iv) limited categories of persons will be at a real risk of persecution on return, namely those whose conduct has marked them out as oppositionists or anti-Government activists, and those who have had activities in the United Kingdom that the Sudanese Government is likely to know about and to consider as significantly harmful to its interests.

More recently, the AIT has decided another country guidance case on Sudan, AY (Political Parties – SCP – Risk) Sudan CG [2008] UKAIT 00050, which dealt with the potential risk on return of a member of the Sudanese Communist Party. The AIT found that ordinary members of a political party in Sudan will not generally be able to establish a claim for asylum. To do so, they would need to show involvement in specific activities likely to attract adverse attention from the Government. Activities likely to attract such attention include building up grass roots democracy, working in support of human rights and engaging in open criticism of the regime’s core ideology and philosophy.

The AIT in AY heard expert evidence on the status and treatment of political parties in Sudan from Mr Peter Verney, an acknowledged country expert on Sudan who also gave evidence in HGMO, mentioned above. He commented, inter alia, on a list of political parties operating in Sudan, stating of JEM that it is, “a Darfurian-based party which is far less obsessive than the current regime about the pursuit of Islamic ideology. It would be seen as an ideological threat.”

COMPLAINT

The applicant complains that his removal to Sudan would violate his rights under Article 3 of the Convention.

QUESTION TO THE PARTIES

Would the applicant’s removal to Sudan violate his rights under Article 3 of the Convention?