European Court of Human Rights

9 July 2009

FOURTH SECTION

Application no. 7935/09
by B.S.
against the United Kingdom
lodged on 10 February 2009

STATEMENT OF FACTS

THE FACTS

The applicant, B.S., is an Iranian national who was born in 1983 and lives in Cardiff.

A.  The circumstances of the case

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

The applicant travelled overland from Iran through Turkey and spent a week in Anatolia, trying to board a ship to Italy. She eventually managed to board a boat, and describes a situation of extreme overcrowding, filthy conditions, little food or water and violence between the crew of the ship and the other passengers. The ship appears to have broken down or been intercepted and put into port in Greece on or around 11 November 2007, where the applicant and her son, together with the other passengers were taken to hospital. She claims that around 200 of those persons also rescued from her boat were returned to their countries of origin. The applicant and her son were in hospital for seven days before being transferred to a camp. During their stay in this camp the applicant made contact with a solicitor who promised to obtain her release in exchange for the sum of 300 Euros. He gave her papers to sign and took her to be fingerprinted. They were subsequently transferred to a different camp in Athens on 23 November 2007. Here, the applicant was approached by an agent, whom she refers to as “mafia”, and who offered to help her. Instead, he took her and her son to his house, where he kept them for several weeks and subjected the applicant to physical and sexual abuse. The agent, Bajar Abdulla, was arrested in connection with people trafficking and smuggling, and it appears that the applicant was forced by his associates, by means of threats to her son, whom they had taken away from the applicant, to testify at his trial. Following the trial, she was taken elsewhere by the associates and kept as an unpaid servant, and subjected to continual threats and abuse. The applicant managed to run away on or around 12 February 2008. She eventually managed to travel over the border to Italy concealed in a truck, and from Italy travelled overland to the United Kingdom (UK), hidden in a series of vehicles.

The applicant arrived in the UK on 31 March 2008 and claimed asylum on 15 April 2008. Her asylum claim was refused and certified on third country grounds on 31 October 2008, after a EURODAC search indicated that she had previously claimed asylum in Greece.

The applicant’s representatives made representations on her behalf dated 6 August 2008, which stated that the applicant’s removal to Greece would seriously compromise her mental health and possibly result in her suicide. The Home Office responded by letter dated 1 September 2008, in which it stated that depression was a widely recognised illness for which treatment was available internationally, including within Greece. It was also noted that Greece was bound by Council Directive 2003/9/EC of 27 January 2003, which laid out minimum standards for the reception of asylum seekers, including immediate access to free healthcare where required. It was not therefore accepted that the applicant’s removal to Greece would put the United Kingdom in breach of its Convention obligations. The applicant’s asylum claim was also certified as clearly unfounded, meaning that she had no right of appeal against the refusal of asylum from within the United Kingdom.

Ms Julie Morgan, the Member of Parliament for the constituency in which the applicant currently resides, contacted the then Minister for Borders and Immigration (Mr Byrne), on behalf of the applicant on 19 September 2008. She expressed her concern about the potential return of the applicant to Greece given her recurrent depressive disorder and severe post traumatic stress disorder (PTSD), and her fears for the applicant’s son should he be removed from his current stable environment, particularly given his mother’s mental state.

On 22 September 2008, the applicant’s representatives again made representations to the Home Office regarding the applicant’s state of health, and the fact that Norway had halted returns to Greece under the Dublin II Regulation as a result inter alia of the concerns raised by UNHCR. The Home Office responded on the same day, pointing out that the United Kingdom had legislation in place which required it to treat Greece as a country to which persons could be safely removed without fear that they would be persecuted. It was also noted that the applicant’s medical issues had already been dealt with in the letter dated 1 September 2008.

The new Minister for Borders and Immigration (Mr Woolas), responded to Ms Morgan by letter dated 26 November 2008, acknowledging that he was aware of criticisms of Greek asylum practices and procedures made by the UNHCR and others, but stating that there were mental health facilities and psychiatric treatment available in Greece, provided by the national health care service, from which the applicant could benefit. He also stated that the Greek authorities would be made aware of the applicant’s medical needs in advance of her return, in order that arrangements for her reception could be made.

The applicant has submitted medical evidence from more than one source which indicates that she is suffering from significant symptoms of PTSD. It appears that this has resulted from her treatment in Greece. Her depression dates from her time in Iran, where she lost a baby at the age of sixteen. An associate specialist in psychiatry confirmed on 1 December 2008 that the applicant suffered from recurrent depressive disorder as well as a complex type of PTSD. By letter dated 12 February 2009, a cognitive behavioural psychotherapist indicated that the applicant had been accepted for a course of trauma-focussed psychological therapy to address her PTSD, but that the course cannot commence whilst there is a likelihood that she will be returned to Greece, as treatment would not be effective where there was a risk that she would be put back into the situation that caused the PTSD. A senior lecturer in child health, who has examined the applicant’s six-year old son and met the applicant, has stated that “his mother’s mental health is very precarious.” According to this expert, the applicant was at the time managing to keep her symptoms under control in order to provide her son with good parenting, but was unlikely to cope with any change of circumstances.

On 20 December 2008, the applicant lodged an application before this Court and requested an interim measure to prevent her expulsion. The applicant and her son were taken into immigration detention on 31 March 2009, pending their removal to Greece which was set for 3 April 2009. On 2 April 2009, the President of the Chamber decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be expelled until further notice. The applicant and her son were released from immigration detention following the application of Rule 39 by the Court.

B.  Relevant domestic and international law and practice

The relevant domestic and international law and practice are set out in K.R.S. v. the United Kingdom (dec.), no. 32733/08, ECHR 2008–,
§§ II – IV.

COMPLAINT

The applicant complains that her removal to Greece would amount to a violation of Articles 3 and 8 of the Convention.

QUESTION TO THE PARTIES

Would the applicant’s removal from the United Kingdom to Greece violate her rights under Articles 3 and/or 8 of the Convention?