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Cite as: [2009] ECHR 1760
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19 October 2009
FOURTH SECTION
Application no.
38851/09
by N.M.
against the United Kingdom
lodged on 22
July 2009
AND
Application no. 39128/09
by Michail M.M.
against the United Kingdom
lodged on 22 July 2009
STATEMENT OF FACTS
THE FACTS
The present applicants are both nationals of Uzbekistan. The first applicant, Ms N.M., was born in 1950 and lives in Port Talbot. The second applicant, her son, Mr M.M., was born in 1983 and also lives in Port Talbot.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The first applicant
The first applicant entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005.
On 9 September 2004, she claimed asylum on the basis of her Russian ethnicity, Orthodox Christianity, and the attacks upon her family and threats that she had received from the mafia because of her British son-in-law. In particular, in 2003, three men had held a knife to her ribs demanding money, and in August 2004, her family home was subject to an attempted arson attack.
On 14 October 2004, her application was refused by the Secretary of State who considered her claim to be incredible because, inter alia, there were discrepancies in her account of when she had started to receive demands of money from the mafia; she had failed to claim asylum on previous visits to the United Kingdom in 1998, 2000, and 2001; there were inconsistencies in the date that she claimed to have been attacked with a knife; it was implausible that the mafia would have known when her British family had sent her money in Uzbekistan; and her son-in-law would not have returned to Uzbekistan after 1996 if his life was genuinely in danger there. In addition, the Secretary of State considered that she had failed to demonstrate a lack of state protection or that she would be unable to relocate internally within Uzbekistan. Finally, the problems and discrimination that she claimed to have suffered due to her ethnicity and religion were not considered to amount to persecution.
Her appeal against this refusal was dismissed by the Immigration Appellate Authority (“the IAA”) on 2 February 2005. The adjudicator was not satisfied that the first applicant had provided evidence to show that she had suffered persecution as opposed to discrimination on account of either her ethnicity or her religion. She considered that the first applicant’s claim was undermined by her movements in and out of Uzbekistan (including three visits to the United Kingdom) during the time that she claimed to fear persecution, and did not accept that she would have returned to Uzbekistan if she had genuinely been at risk there. She also found that the first applicant’s credibility was further undermined by her delay in claiming asylum upon arrival in the United Kingdom until 9 September 2004. In relation to the threats from the mafia, the adjudicator considered that the first applicant had failed to demonstrate that there was not a sufficiency of protection available to her and that she would be unable to internally relocate to another part of Uzbekistan for safety. Finally, she found nothing in the objective evidence to suggest that the first applicant would be at risk by virtue of her status as a returning failed asylum seeker.
On 26 May 2005, the Asylum and Immigration Tribunal (“the AIT”) dismissed an application for reconsideration of that determination.
On 27 July 2005, Mr Justice Walker sitting in the High Court granted an application for reconsideration of that determination.
In a decision promulgated on 23 April 2008, the AIT dismissed her appeal upon reconsideration, finding that the IAA’s decision had to stand as her representatives had conceded that it did not disclose any arguable error of law.
On 25 February 2008 and 6 May 2008, further representations were submitted on both the first and second applicant’s behalf which were rejected by the Secretary of State on 25 June 2009 as not amounting to a fresh claim. Given the previous findings upon appeal, the Secretary of State did not accept that there was any objective evidence to suggest that the first applicant would be at real risk on account of her ethnicity or religion on return to Uzbekistan. It was accepted that discrimination against ethnic Russians may be perpetrated by random individuals, but considered that she could seek protection from the authorities or move to another part of the country. It was also considered that the first applicant could decide to join her family who had already moved to the Russian Federation from Uzbekistan. Whilst, it was accepted that the first applicant had both family life with her British daughter, son-in-law, and grandson and private life in the UK after having integrated into the community over a period of five years, it was not considered that her removal would be disproportionate under Article 8.
2. The second applicant
The second applicant also entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005.
He made an application for asylum on 9 September 2004, on the basis of his Russian ethnicity, Orthodox Christianity, the multiple attacks upon him by the mafia because of his British brother-in-law (which had led to his hospitalisation for ten days), and an attempted arson attack upon the family home in August 2004.
His application was refused by the Secretary of State on 22 October 2004 who considered that his claim was incredible because inter alia, he was not physically attacked until four years after his brother-in-law had left the country, and his mother was not attacked for seven years; there were discrepancies in the account of when he had been attacked; it was implausible that the mafia would have been aware of when his brother-in-law had sent the family money; and he had failed to claim asylum on previous visits to the United Kingdom in 2000 and 2003. The Secretary of State also considered that the second applicant had not established that the police had failed to assist him or that he would be unable to relocate within Uzbekistan. It was noted that the second applicant claimed not to practise his religion and therefore it was not accepted that he would be at risk of persecution on that account. The problems that he claimed to have suffered due to his ethnicity and religion were not considered to amount to persecution.
His appeal against this refusal was dismissed by the IAA on 19 January 2005, who did not find his evidence as to past events to be credible. In relation to his fear of being persecuted on religious or ethnic grounds, the adjudicator did not find it credible that he had been persecuted in the past given that he had stated that he was a non-practising Christian and had failed to claim asylum on his two previous visits to the United Kingdom. In any event, the adjudicator did not accept that Christians were persecuted in Uzbekistan. The adjudicator did not find it credible that the second applicant had been persecuted as a result of his British brother-in-law as he would have claimed asylum in the United Kingdom earlier if that were the case. Even taking his claim at its highest, he had not demonstrated that he was unable to seek the protection of the police or to relocate within Uzbekistan. Whilst the adjudicator was satisfied that the second applicant had an existing private and family life in the United Kingdom, it was found to be proportionate to remove him to Uzbekistan in the lawful and legitimate interests of immigration control.
On 30 March 2005, the second applicant was granted permission to appeal to the Immigration Appeals Tribunal. The appeal was dismissed on 3 February 2006 as the second applicant, upon whom the burden of proof lay, had not submitted any objective evidence with regards to the situation of ethnic Russians or Christians in Uzbekistan. There could therefore not be said to be any errors of law in the original determination.
The second applicant submitted further representations in relation to the increased risk upon return of ethnic Russians to Uzbekistan on 14 March 2006, which were rejected by the Secretary of State on 21 September 2007 as not amounting to a fresh claim. It was accepted that Russians may face discrimination in Uzbekistan, but not that that treatment would amount to persecution. It was considered that the documents that the second applicant had submitted were generic and did not specifically relate to his own experience.
On 25 February 2008 and 6 May 2008, the second applicant submitted further representations to the Home Office, which were rejected on 25 June 2009 as not amounting to a fresh claim. Given the previous findings upon appeal, the Secretary of State did not accept that there was any objective evidence to suggest that he would be at real risk on account of his ethnicity or religion on return to Uzbekistan. It was accepted that discrimination against ethnic Russians may be perpetrated by random individuals, but considered that the second applicant could seek protection from the authorities or move to another part of the country. It was also considered that the second applicant could decide to join his extended family that had moved to Russia. Whilst it was accepted that the second applicant had both family life with his British sister, brother-in-law, and nephew and private life in the United Kingdom after having integrated into the community over a period of five years, it was not considered that removal would be disproportionate under Article 8 as he had remained in the United Kingdom unlawfully and would be removed with his mother.
On 22 July 2009, both applicants lodged their applications requesting interim measures under Rule 39 of the Rules of Court. In support of their applications, they submitted a letter dated 23 July 2009 from Mr Craig Murray, the former British Ambassador to Uzbekistan from 2002 to 2004, which states:
“I should be extremely concerned at the fate of anybody deported to Uzbekistan, whose exit visa has expired. The notoriously cruel Uzbek security services have a permanent presence behind the immigration officers at Tashkent airport and at all points of entry. They would pick up anybody with an expired exit visa and subject them to ferocious questioning....
Any hint that the M. M. had claimed political asylum in the UK ....and [they] will almost certainly be subjected to treatment that well exceeds the bar for torture.
In view of their likely fate, I should most strongly urge that deportation is halted while these questions are considered.”
On 24 July 2009, the Acting President applied Rule 39 of the Rules of Court in respect of both applicants.
B. Relevant domestic law and practice
Appeals from decisions of the Secretary of State for the Home Department in asylum, immigration and nationality matters are now heard by the Asylum and Immigration Tribunal (“the AIT”), which replaces the former system of adjudicators and the Immigration Appeal Tribunal (“the IAT”). Country guideline determinations of both the AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination until expressly superseded or replaced by a later country guideline determination.
In the country guideline determination of OM (Returning citizens – minorities – religion) Uzbekistan CG [2007] UKAIT 00045, the AIT held first, that it had not been established that Uzbek citizens whose passports had expired could not obtain a renewal from embassies abroad, or that returnees who had been abroad for longer than permitted by an exit visa were at real risk of disproportionate punishment on return. Second, the AIT held that there was no satisfactory evidence that non-Uzbeks faced discrimination of such a nature as to amount to persecution, or serious harm, or a breach of their Article 3 rights. Third, it held that whilst followers of all religions, save for Muslims who attend registered Mosques, were subject to a degree of harassment, it did not in general amount to persecution, serious harm or a breach of a worshippers’ human rights. Finally, it held that ministers of religion, those who practise religion in unregistered premises, particularly active members of evangelical Christian congregations, and proselytising or fundamentalist denominations of any religion could be at risk depending on the facts in every case.
This case was remitted to the AIT by a consent order in the Court of Appeal dated 22 October 2008, and is yet to be heard or determined.
Objective Evidence
1. Report of the United Nations Special Rapporteur on the question of torture, Theo van Boven , E/CN.4/2003/68/Add.2, 3 February 2003
In this report, the Special Rapporteur stated that torture or ill-treatment was systematic in Uzbekistan and was used as a “routine and investigative technique”.
Uzbekistan has not extended a further invitation to the Special Rapporteur on torture to visit the country, despite repeated renewed requests being made.
2. Concluding Observations upon Uzbekistan of the United Nations Committee against Torture, CAT/C/UZB/CO/3, 26 February 2008
In this document the Committee against Torture set out its concerns about, inter alia:
“(a) Numerous, ongoing and consistent allegations concerning routine use of torture and other cruel, inhuman or degrading treatment or punishment committed by law enforcement and investigative officials or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings;
(b) Credible reports that such acts commonly occur before formal charges are made, and during pre-trial detention, when the detainee is deprived of fundamental safeguards, in particular access to legal counsel. This situation is exacerbated by the reported use of internal regulations which in practice permit procedures contrary to published laws....”
The Committee also reported that it had received:
“...credible reports that persons who had sought refuge abroad and were returned to Uzbekistan were kept in isolation in unknown places, and subjected to breaches of the Convention against Torture.”
3. United States Commission on International Religious Freedom, Report published on 1 May 2009
This report continued to name, as it had done since 2006, Uzbekistan as a country of particular concern for violations of religious freedom. It noted not only that Uzbekistan’s law on Freedom of Conscience and Religious Organisations, passed in May 1998, severely restricted the exercise of religious freedoms, but also that since 2005, those laws had become stricter. The report also highlighted the crackdown on many religious groups, and the increase in 2008 of repression of non-Muslim groups, including threats of violence and arrest, disruption of services and detention. Religious groups were noted to face ongoing harassment, detention and arrest for “illegal religious activity”.
4. Freedom in the World Report upon Uzbekistan, 2009
Reporting on events in 2008, this report noted that Uzbekistan “remained marked by repressive state controls and the denial of basic human rights and freedoms”, and noted that Christian minorities suffered greater harassment in 2008.
5. Reports of non-governmental organisations
In its submission to the United Nations Human Rights Committee dated 28 April 2009, Amnesty International remained seriously concerned about persistent allegations of widespread torture and other ill-treatment of detainees and prisoners by law enforcement personnel and prison guards, reports of which stemmed from all layers of civil society. Allegations had also been made that individuals returned to Uzbekistan from other countries were held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated. The submission also sets out that illegal exit abroad or illegal entry into Uzbekistan, including overstaying the permission to travel abroad or failure to renew it are punishable under Article 223 of the Criminal Code with imprisonment from three to five years or in aggravated circumstances by up to ten years’ imprisonment. Returned asylum seekers are particularly vulnerable to being charged under Article 223, as many will not have renewed their permission to travel abroad (having applied for asylum abroad).
In its submission to the United Nations Human Rights Committee of June 2009, Human Rights Watch sets outs its concerns about the “atrocious” human rights record of Uzbekistan. It notes that the Government of Uzbekistan continues to refuse access to the country to no fewer than eight United Nations special procedures despite their longstanding and repeated requests for invitations to visit Uzbekistan. The Government has also demonstrated its lack of commitment to cooperation through its continued failure to implement United Nation expert bodies’ recommendations pertaining to torture. It notes that torture and ill-treatment remain endemic to the criminal justice system in Uzbekistan, and states that another distinct concern relating to torture and ill-treatment in Uzbekistan is that of Uzbek refugees and asylum seekers forcibly returned.
COMPLAINTS
The applicants complain that it would expose them to a real risk of being subjected to treatment in breach of Article 3 of the Convention and/or a violation of Article 2 if they were to be returned to Uzbekistan. They also complain under Article 8 of the Convention that their removal from the United Kingdom to Uzbekistan will violate their rights to respect for private and/or his family life. Additionally, the applicants complain that they will be unable to have access to a fair trial in violation of Article 6 of the Convention if removed to Uzbekistan. Finally, the second applicant complains that the damage caused to his passport by the United Kingdom Border Agency violated his right to enjoy his possessions under Article 1 of Protocol 1 of the Convention.
QUESTION TO THE PARTIES
Would the applicants’ removal to Uzbekistan violate Article 2 and/or Article 3 of the Convention?
The parties are requested to comment on the recent objective information set out in the statement of facts and, if necessary, to provide any further such information. The parties are also requested to keep the Court informed of the outcome of the Country Guidance case of OM (Returning citizens – minorities – religion) Uzbekistan CG [2007] UKAIT 00045, that is understood to have been remitted to the Asylum and Immigration Tribunal by a Consent Order in the Court of Appeal on 22 October 2008.