European Court of Human Rights

FOURTH SECTION

Application no. 3202/09
F.N.
against the United Kingdom
lodged on 20 January 2009

STATEMENT OF FACTS

THE FACTS

The applicant, F.N., is a Ugandan national who was born in 1975 and lives in Kampala, Uganda. She was represented before the Court by Ms K. Brandemo of Women Against Rape, a non-governmental organisation based in London.

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 3 October 2000, travelling on a passport that did not belong to her. She claimed asylum upon her arrival, stating that she feared the Lord’s Resistance Army (LRA), a rebel group, which had raided the home of the applicant and her grandmother in a village in northern Uganda. She did not state at the outset of her asylum claim that she had been gang-raped by the seven LRA soldiers, as she was too ashamed and embarrassed to recall the incident in front of a stranger. A few days after her arrival, she told her aunt, with whom she had gone to live, that she had been raped. Her aunt took her to see her General Practitioner, who referred the applicant to a counsellor. The applicant went on to see this counsellor weekly until the end of 2002. She also obtained legal representation and her solicitor advised the Secretary of State by letter about the applicant having been raped. Her asylum claim was refused on 4 March 2001 on the bases that her credibility had been damaged by failing to state her claim fully at the outset and by travelling on a false document, and that the Lord’s Resistance Army were not agents of persecution, being non-state actors.

The applicant appealed against the refusal of asylum and her appeal was heard by the Asylum and Immigration Tribunal (as it then was) on 24 March 2006. The Immigration Judge found the applicant to be credible, stating that it was entirely plausible that she would not have admitted at the outset to having been raped because she was too humiliated and ashamed to do so. This was consistent with evidence that the applicant had undergone counselling for rape trauma and with her demeanour during the hearing. He also found the applicant’s account of her experiences to be wholly consistent with background evidence on the practices of the LRA. The judge further found that, while the applicant would be safe from the LRA in Kampala, the capital of Uganda, it would be unduly harsh to expect her to relocate there given the trauma she had suffered and the lack of any remaining family or other support available to her in Uganda.

The Secretary of State appealed against the Tribunal’s decision and the case was remitted for reconsideration on 26 April 2006. A Senior Immigration Judge found that the Immigration Judge had erred in finding that the applicant was a member of a particular social group for the purposes of the Refugee Convention. He had further erred in finding that the Ugandan authorities could not offer effective protection, and that it would be unduly harsh for the applicant to relocate to Kampala.

The case was therefore reheard before a differently constituted Tribunal on 27 March 2007. The Immigration Judge at this hearing accepted the Secretary of State’s argument that the applicant’s failure to disclose the whole basis of her asylum claim at the outset and her use of a false passport undermined her credibility. He also found that inconsistencies in her account further detracted from her credibility. He did not therefore believe that she had been gang-raped as she claimed. However, even if her account were true, the judge found that the applicant was not a refugee in terms of the Refugee Convention, as she had not been specifically targeted by the LRA. There was little evidence to suggest that the authorities would be unwilling or unable to provide her with protection if she were to return. It was not unduly harsh to expect a 32-year old woman, who was in good physical health, and had qualified as a nurse whilst in the United Kingdom and could therefore be presumed to be able to find work in Uganda, to return to Kampala and re-establish herself. He accepted that the applicant had undergone counselling in the past and had been prescribed with anti-depressants, but found that there was little evidence before him of her having any significant mental health problems. As to the applicant’s rights under Article 8, it was accepted that she lived with and enjoyed a close relationship with her aunt, which amounted to family life. It was also accepted that she had established private life in the United Kingdom, which included her nursing studies and the support network comprising medical professionals and a non-governmental women’s organisation on which she relied. However, while her removal would have a major impact on her life, her case was not sufficiently exceptional to render removal disproportionate in all the circumstances. Her appeal was therefore dismissed. An application for reconsideration of the Tribunal’s decision was refused on 16 October 2007.

The applicant was taken into immigration detention on 16 May 2008 and directions were set for her removal on 19 May 2008. She submitted further representations to the Secretary of State on 19 May 2008, stating that she was at risk of suicide. These representations were rejected as not amounting to a fresh asylum claim on the same date. The Secretary of State took note of the applicant’s medical notes from the immigration detention centre, which stated that the applicant had twice attempted to self harm whilst in the centre, but that she had denied being suicidal. The applicant made an application for permission to seek judicial review of the decision not to treat her representations as a fresh claim, as a result of which her scheduled removal was cancelled. She was also released from detention on 9 July 2008. However, her application was refused by the High Court on 10 October 2008.

The applicant was taken into immigration detention again on 14 January 2009 with a view to her removal. She again made representations to the Secretary of State on the same day, which were rejected as not amounting to a fresh claim on 20 January 2009. The Secretary of State did not consider that a report from the applicant’s psychiatrist stating that the applicant was highly likely to harm herself if removed to Uganda amounted to the clearest possible indication that there was a real risk of suicide in the applicant’s case, such as would be required to prevent her removal. An application to appeal against the refusal of the applicant’s application for permission to seek judicial review was refused on the same day by the Court of Appeal, which found that all new material put to the Secretary of State since the High Court had considered the case had been fully addressed, without error of law.

Also on the same date, the applicant sought interim measures under Rule 39 from this Court to prevent her removal to Uganda which was scheduled for that evening. The application under Rule 39 was refused and the applicant’s removal went ahead as scheduled.

The applicant initially stayed with a family in Kampala who were friends of her aunt and who had agreed to accommodate the applicant temporarily. She was unable to obtain employment due to her lack of contacts and limited ability in Lugandan, which is the language most widely spoken in Kampala. She was unable to find or to afford the anti-depressants that she had been taking in the United Kingdom and did not manage to access any mental health support. In early 2010, the applicant was raped at knifepoint. She became pregnant as a result of the rape and gave birth to a baby boy in December 2010. When the family with whom the applicant was staying discovered that she had been raped, they asked her to leave because of the stigma attached to rape. Since then, the applicant has been homeless. She has been surviving on the small amount of money her aunt and others in the United Kingdom have been able to send her and by street begging.

B.  Relevant domestic law

1.  Asylum and human rights claims

Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal.

Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

2.  Fresh asylum and human rights claims

Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides:

“353.  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.”

As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:

“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State’s decision.”

Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.

3.  AA (Uganda) v. Secretary of State for the Home Department [2008] EWCA Civ 579

In this case, the Court of Appeal, deciding an appeal against the judgment of the Asylum and Immigration Tribunal (as it then was), found that it would be unduly harsh to expect a young female rape survivor, suffering from some mental health problems, who originated from northern Uganda and who did not have family or other contacts in Kampala, to relocate to that city. The appellant’s only possibly means of survival was likely to be prostitution, to which no young female and particularly not the appellant, given her particular history, should be expected to have to resort.

COMPLAINTS

The applicant complains under Articles 3 and 8 of the Convention about her removal to Uganda.

QUESTIONS TO THE PARTIES