European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 43688/07
Atwine BOAZ
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 29 November 2011 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Atwine Boaz, is a Ugandan national who was born in 1962 and lives in Birmingham. His application was lodged on 6 October 2007. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Kuzmicki of the Foreign and Commonwealth Office.

A. The circumstances of the case

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

The applicant claimed asylum in the United Kingdom on the ground that if returned to Uganda he would be persecuted on account of his political opinion. He further complained that his removal would be contrary to Articles 2 and 3 of the Convention. In particular, he claimed that he had been a member of the National Resistance Movement since 1984 and had worked as one of three personal aids to Brigadier Henry Tumukunde, who was the Director General of Internal Security. He stated that following the arrest of Brigadier Tumukunde he had been arrested by Government officials and repeatedly tortured by officials looking for information about Brigadier Tumukunde and the Reform Agenda. However, two of the officers who had arrested him helped him to escape. 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, finding his account of his arrest and escape to be implausible. The applicant appealed to the Asylum and Immigration Tribunal.

In the meantime, the applicant 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.

Around this time the applicant was diagnosed with HIV and a chronic Hepatitis B infection. He was also admitted to hospital under section 2 of the Mental Health Act 1983.

On 29 January 2007 an Immigration Judge dismissed the applicant’s appeal, finding, inter alia, that his account was not credible.  The judge then considered the applicant’s medical condition. She found that the diagnosis of depression was based on the applicant’s account, which had been found to be largely false. Although the judge found that the applicant’s scarring was self-evident, the adverse credibility findings meant that there was a real possibility the scars had been sustained in ways unconnected with the alleged detention and ill-treatment. With regard to the HIV infection, the judge found that the applicant would be able to receive appropriate treatment, either free or at a cost, on return to Uganda. On the basis of all the evidence, the Immigration Judge concluded that the applicant had “fabricated his whole story in order to give himself grounds for making a claim to asylum status”.

The applicant applied to the Tribunal for an order for reconsideration on the ground that the Immigration Judge had erred in law by failing to deal properly with the medical evidence and by arriving at perverse findings as to credibility. The application was brought seven days out of time. In a decision dated 7 March 2007 the Tribunal held that the Immigration Judge’s determination of 29 January 2007 disclosed no material error of law and 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. A subsequent medical report described him as having a history of psychotic illness while another stated that he suffered from paranoid schizophrenia. The report noted that 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 his 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.

COMPLAINTS

The applicant complained that if he were returned to Uganda he would be at risk of death or ill-treatment on account of his imputed political opinion. The applicant also complained that he would face inhuman and degrading treatment on return to Uganda on account of the fact that he would not have access to adequate treatment for his medical condition.

THE LAW

Following receipt of the parties’ observations, it came to the Court’s attention that Brigadier Henry Tumukunde had been released from detention in 2007 and that his return to the Ugandan political scene was “imminent”. By letter dated 13 April 2011 the Court asked the parties to submit further information concerning the current position of both Brigadier Henry Tumukunde and the Reform Agenda in Uganda. On 27 April 2011 the Government submitted supplementary observations which were sent to the applicant’s representative under the cover of a letter dated 6 June 2011. The applicant was invited to submit further observations by 18 July 2011.

By letter dated 13 January 2011, which was received by the Court on 30 June 2011, the applicant’s representative indicated that he was no longer instructed by him. On 13 July 2011 the Court wrote to the applicant to ask him to appoint a new representative and submit a completed form of authority by 10 August 2011. No reply was received and on 27 September the Court wrote to the applicant by registered post. He was informed that failure to appoint a new representative and to submit a completed form of authority by 25 October 2011 could lead to his application being struck out of the Court’s list of cases.

On 18 October 2011 the registered letter was returned to the Court with a note indicating that the recipient had “gone away”. The applicant has not contacted the Court since January 2010, although his representative contacted the Court in January 2011 to advise that they had not been able to take instructions from him. The applicant has not informed the Court of any change of address.

The Court considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

In view of the above, it is appropriate to strike the case out of the list and to discontinue the Rule 39 measure in consequence.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President