European Court of Human Rights

20 March 2009

FOURTH SECTION

Application no. 39214/07
by K. against the United Kingdom
lodged on 7 September 2007

STATEMENT OF FACTS

THE FACTS

The applicant, F. K. is an Uzbekistan national who was born in 1981 and lives in Essex. He is represented before the Court by Mr H. Jack, a lawyer practising in Leeds.

A.  The circumstances of the case

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

The applicant, who is Sunni Muslim from Tashkent, began to attend a mosque following Uzbekistan’s proclamation of independence in 1991. In 1995, however, the authorities began to restrict religious activities. Many of the applicant’s friends were detained and beaten, his Imam was fired following false allegations and other religious teachers were arrested. The applicant began to host secret religious gatherings at his home. In October 2001 a member of his group was arrested by the authorities, and the applicant fled to his aunt’s house. After the police caught up with him he fled to his uncle’s home before his father persuaded him to go to the police. He was taken into custody, interrogated about his religious activities and beaten unconscious. After five or six hours he was released with a monthly reporting condition.

The applicant suffers from monostotic fibrous dysplasia, which caused serious facial deformity. A tumour on his face worsened following the beating by the police and he obtained a medical visa to travel to the United Kingdom for treatment. He obtained an exit visa and left Uzbekistan on 3 August 2003, but he returned on 3 October 2003 to find an interpreter. He returned to the United Kingdom on 28 October 2003 and remained there until after the expiry of both his period of leave and his exit visa.

On 13 May 2005 in Andijan, in eastern Uzbekistan, armed gunmen attempted to release prisoners accused of religious extremism. Later that afternoon thousands of unarmed protesters gathered to complain about poverty and repression. They were ambushed by Government forces and several hundred people were killed. In the aftermath of the massacre, many Uzbeks fled the country.

Following the massacre, the applicant attended a demonstration against the Uzbek authorities held outside the Uzbekistan embassy in London. He believes that the demonstration was video recorded. Later the same year his family in Uzbekistan were threatened by members of the National Security Service. On 13 May 2006 the applicant took part in a further demonstration, which he believes was also filmed by someone from the Uzbekistan Embassy.

On 30 October 2006 the applicant claimed asylum in the United Kingdom. On 20 April 2007 the Secretary of State for the Home Department refused the claim. The Secretary of State did not accept that Muslims were a persecuted group, and he found that the general situation in Uzbekistan was not serious enough to warrant a grant of asylum. Moreover, the Secretary of State found that the applicant’s credibility was damaged by inconsistencies in his account.

The applicant appealed to the Asylum and Immigration Tribunal (“the AIT”), which dismissed the appeal on 20 June 2007. The AIT found that the applicant was not a “witness of truth”. He was deliberately evasive and there were numerous inconsistencies and implausibilities in his account. It concluded that while Uzbekistan was a repressive regime with a generally poor human rights record, the applicant had failed to discharge the burden of proving that he would be at real risk of persecution or an interference with his human rights on return. On 25 July 2007 the AIT refused to grant the applicant an order for reconsideration. His application for a High Court review was refused on 12 July 2007. A further application for High Court review was refused by the Administrative Court on 6 December 2007.

Following the appeal decision details of the applicant’s asylum claim appeared on the website of an organisation called Human Rights in Central Asia.

The applicant was to be removed from the United Kingdom on 11 September 2007. He applied to the Court for interim measures under Rule 39 of the Rules of Court on 7 September 2007. Interim measures were initially granted until 21 September 2007, to enable the applicant to submit a report by Amnesty International. On 21 September 2007, following receipt of the report, the interim measure was prolonged until further notice.

The report by Amnesty International indicated that the applicant would be at risk on return because his exit visa had expired. The names of citizens granted an exit visa who failed to return were reported to be registered with the Ministry of Internal Affairs and an investigation launched into their whereabouts. Article 223 of the Uzbekistani Criminal Code punished illegal exit of/entry to the country with a fine or 3 – 5 years imprisonment or, in aggravating circumstances, with up to 10 years imprisonment. Amnesty International believed that because of his involvement with the London protests and his absence from Uzbekistan on 13 May 2005, the applicant could plausibly be perceived as being associated with the preparation of the Andijan protests that proceeded the massacre. As an independent Muslim potentially linked to the events of 13 May 2005, Amnesty International believed that if forcibly returned there was a risk that the applicant would be detained immediately and would face politically motivated charges. While in detention he would be at serious risk of torture or other ill-treatment.

This report, together with a report by Dr Bhavna Dave of the School of Oriental and African Studies, which reached a similar conclusion, formed the basis of new representations made by the applicant to the Home Office. In a letter dated 12 June 2008, the Home Office concluded that the new information did not amount to a fresh asylum claim. In particular, it noted that the reports were based on the assumption that the applicant’s account was true, when the AIT had already found it to be implausible. It further found that the publishing of details of the applicant’s asylum claim on the internet was a deliberate attempt to increase the profile of his case.

The applicant challenged this decision by making further representations on 15 July 2007. On 17 September 2007 the Home Office notified the applicant that these representations did not amount to a fresh claim, and he had no further right of appeal.

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; secondly, 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; thirdly, 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; fourthly, ministers of religion, those who practice 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.

COMPLAINTS

The applicant complains that his forcible removal to Uzbekistan would be a breach of the United Kingdom’s obligations under Articles 2, 3 and 6 of the Convention.

QUESTION TO THE PARTIES

Would the applicant be at risk of ill-treatment in violation of Article 3 if he were returned forcibly to Uzbekistan?