European Court of Human Rights

31 August 2009

FOURTH SECTION

Application no. 43688/07
by Atwine BOAZ
against the United Kingdom
lodged on 6 October 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Atwine Boaz, is a Ugandan national who was born in 1962 and lives in Birmingham.

A.  The circumstances of the case

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

The applicant arrived in the United Kingdom on 26 June 2006. He claimed asylum the same day. He submitted that on return to Uganda he would face ill-treatment on account of his political opinion and his removal would be contrary to Articles 2 and 3 of the Convention.

He claimed that he had been a member of the National Resistance Movement since 1984. He also claimed that in 1997/8 he started working as one of three personal aids to Brigadier Henry Tumukunde, who was the Director General of Internal Security. Following the arrest of Brigadier Tumukunde in April 2005 the applicant remained in post but was assigned to other duties. On 3 June 2006 the applicant was arrested by Government officials and taken to a safe house. He was tied up, beaten and repeatedly tortured by officials looking for information about Brigadier Tumukunde and the Reform Agenda. On 25 June 2006 two of the officers who had arrested him helped him to escape. After stopping to buy a clean shirt, he was taken to the airport, where he was given a passport and put on a plane bound for the United Kingdom.

On 30 June 2006 the Secretary of State for the Home Department refused the applicant’s asylum claim. The Secretary of State did not find the applicant’s account credible. In particular, he did not accept that the applicant worked with Brigadier Tumukunde as he did not know when he took up his post as Director General and he did not know why he had been detained in April 2005; he found that if the applicant were really of interest to the authorities, it was implausible that he would have been left alone for one year after Brigadier Tumukunde was arrested; he found it implausible that the two arresting officers would have assisted with the applicant’s escape; finally, he considered it implausible that the applicant would have gone shopping for a shirt following his escape from detention.

The applicant appealed to the Asylum and Immigration Tribunal. Before the Tribunal heard the appeal, he obtained two medical reports from the Medical Foundation for the Victims of Torture. The first report was prepared by a consultant psychiatrist and indicated that the applicant had mild-moderate depression with anxiety symptoms associated with his detention and maltreatment. The second report indicated that the applicant had a pattern of scarring on his body which was highly consistent with his account of torture. In the doctor’s expert opinion, there was a reasonable degree of likelihood that the scars were caused in the manner described by the applicant.

In October 2006 the applicant was diagnosed with HIV and a chronic Hepatitis B infection. He was started on a combination of Kaletra and Truvada for both the HIV and Hepatitis B infection.

On 7 November 2006 the applicant was admitted to hospital under section 2 of the Mental Health Act 1983. He was discharged on 5 December 2006.

On 29 January 2007 the Asylum and Immigration Tribunal dismissed the applicant’s appeal. The Tribunal indicated that if the applicant’s account were true, it would have accepted that a person in his position, who feared persecution on account of a work association with General Tumukunde, would likely be at risk of persecutory treatment or ill-treatment contrary to Articles 2 and 3 of the Convention. The Tribunal found, however, that the applicant’s account was not credible because first, he appeared to be unaware that the Reform Agenda had been dissolved and reformed as the Forum for Democratic Change; secondly, his initial claim contained no reference to the Reform Agenda; thirdly, an identity card produced at the hearing, allegedly issued by the Internal Security Office, was dated 19 June 1993, but the applicant had indicated in evidence that he only started to work there in 1997/8; fourthly, he wrongly identified Yoweri Museveni as chairman of the National Resistance Movement; fifthly, if he had suffered the injuries that he alleged, it was unlikely that he would have been in a fit state to stop to buy a shirt en route to the airport.

The Tribunal then considered the applicant’s medical condition. It found that the diagnosis of depression was based on the applicant’s account, which had been found to be largely false. The Tribunal further noted that none of the symptoms of depression were evident when the applicant was giving evidence, and the Medical Foundation for the Victims of Torture had not prescribed him any medication. Although the Tribunal noted that the applicant’s scarring was self-evident, its adverse credibility findings meant that there was a real possibility that the scars had been sustained in ways unconnected with the alleged detention and ill-treatment. With regard to the HIV infection, the Tribunal found that the applicant would be able to receive appropriate treatment, either free or at a cost, on return to Uganda.

The applicant applied to the Tribunal for an order for reconsideration. In a decision dated 7 March 2009, the Tribunal declined to make an order as the decision of 29 January 2009 disclosed no material error of law. The application was brought seven days out of time and the Tribunal refused to extend time.

On 24 July 2007 the applicant was reviewed in a psychiatric outpatient clinic. In the course of the review, it became apparent that he was experiencing persecutory delusions and auditory hallucinations. He had no suicidal ideations or intentions to self-harm or harm others. A plan for a course of treatment with regular follow ups was prepared.

On 4 October 2007 the applicant made new submissions to the Home Office Border and Immigration Agency. The new submissions primarily concerned the applicant’s medical condition. In a letter dated 7 October 2007, the Secretary of State for the Home Department informed the applicant that he did not consider that the new material, when taken with that which was previously considered, created a realistic prospect of success for the applicant.

Removal directions were set for 10 October 2007. On the same day the Acting President of the Fourth Section 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 removed to Uganda until further notice.

B.  Relevant domestic law

Following the refusal of an asylum application by the Secretary of State for the Home Department, an applicant has a right of appeal to the Asylum and Immigration Tribunal. Section 103A of the Nationality, Immigration and Asylum Act 2002 (as inserted by section 81(6) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004) provides that a party to an appeal to the Tribunal could apply for an order that the Tribunal reconsider its decision on appeal on the ground that it made a material error of law. If the Tribunal declines to order reconsideration, an applicant may renew the application to the High Court.

Once the appeal process against the refusal of an asylum application is exhausted, an applicant could continue to make further submissions to the Secretary of State for the Home Department. Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State for the Home Department. 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that:

“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i)  had not already been considered; and

(ii)  taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”

“Removal of persons refused leave to enter and illegal entrants

8  (l) Where a person arriving in the United Kingdom is refused leave to enter, an immigration officer may, subject to sub-paragraph (2) below—

(a) give the captain of the ship or aircraft in which he arrives directions requiring the captain to remove him from the United Kingdom in that ship or aircraft; or

(b) give the owners or agents of that ship or aircraft directions requiring them to remove him from the United Kingdom in any ship or aircraft specified or indicated in the directions, being a ship or aircraft of which they are the owners or agents; or

(c) give those owners or agents directions requiring them to make arrangements for his removal from the United Kingdom in any ship or aircraft specified or indicated in the directions to a country or territory so specified, being either—

(i) a country of which he is a national or citizen; or

(ii) a country or territory in which he has obtained a passport or other document of identity; or

(iii) a country or territory in which he embarked for the United Kingdom; or

(iv) a country or territory to which there is reason to believe that he will be admitted.

8  (2) No directions shall be given under this paragraph in respect of anyone after the expiration of two months beginning with the date on which he was refused leave to enter the United Kingdom.”

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention that if returned to Uganda he would be at risk of death or ill-treatment on account of his imputed political opinion and that he would face inhuman and degrading treatment on account of his medical condition. The applicant further submits that his removal would violate his right to respect for his private and family life under Article 8 of the Convention.

QUESTIONS TO THE PARTIES