N.M. AND M.M. v. THE UNITED KINGDOM
Inadmissible
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano
1. The present applicants are both nationals of Uzbekistan. The first applicant, Ms N.M., was born in 1950 and lives in Port Talbot. Her son, the second applicant, Mr M.M., was born in 1983 and also lives in Port Talbot. They are represented before the Court by Duncan Moghal Solicitors, lawyers practising in Gwent. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Moynihan of the Foreign and Commonwealth Office. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005. 4. On 9 September 2004, she claimed asylum on the basis of her Russian ethnicity, Orthodox Christianity, and the threats to and attacks upon her family by the mafia because of her British son-in-law who, it was assumed, must be sending money to the family in Uzbekistan. In particular, she claimed that, while in Uzbekistan, three men had held a knife to her ribs demanding money in 2003 and that her family home had been subjected to an attempted arson attack in August 2004. 5. 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 that there would be insufficient protection from the Uzbek authorities from the mafia 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. 6. Her appeal against this refusal was dismissed by the then Immigration Appellate Authority (“the IAA”) on 2 February 2005. The Adjudicator upheld the majority of the Secretary of State’s findings and also found that the first applicant’s credibility was undermined by her delay in claiming asylum until 9 September 2004. Furthermore, the Adjudicator found nothing in the objective evidence to suggest that the first applicant would be at risk in Uzbekistan by virtue of her status as a returning failed asylum seeker. 7. On 26 May 2005, the then Asylum and Immigration Tribunal (“the AIT”) dismissed an application for reconsideration of that determination. 8. On 27 July 2005, the High Court granted an application for reconsideration of that determination for unknown reasons. 9. 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. 10. The second applicant also entered the United Kingdom on 22 August 2004 on a six month visitor’s visa valid until 13 January 2005. 11. He also 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 the second applicant’s hospitalisation for ten days), and an attempted arson attack upon the family home in August 2004. 12. On 22 October 2004, his application was also refused by the Secretary of State who considered his claim to be incredible because, inter alia, he had not been physically attacked until four years after his brother-in-law had left Uzbekistan; there were discrepancies in his 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. 13. His appeal against this refusal was dismissed by the IAA on 19 January 2005. The Adjudicator upheld the findings of the Secretary of State and found that the second applicant’s account of past events was not credible. Furthermore, the Adjudicator did not accept that Christians or ethnic Russians were persecuted in 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. 14. On 30 March 2005, the second applicant was granted permission to appeal to the then Immigration Appeal Tribunal (“the IAT”). On 3 February 2006, further to reforms of the IAA (see paragraphs 23–26 below), the appeal was dismissed by the AIT. It found that the second applicant had not submitted any objective evidence with regards to the situation of ethnic Russians or Christians in Uzbekistan and therefore could not make out his contention that the Adjudicator had failed to take into account any such evidence. 15. On 14 March 2006, the second applicant submitted further representations in relation to the increased risk upon return of ethnic Russians to Uzbekistan, 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 such 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. 16. On 25 February 2008 and 6 May 2008, further representations were submitted to the United Kingdom Border Agency on both the first and second applicants’ behalf, which were rejected on 25 June 2009 as not amounting to a fresh claim. Given the previous findings upon appeal, the United Kingdom Border Agency did not accept that there was any objective evidence to suggest that they would be at real risk on account of their ethnicity or religion on return to Uzbekistan. It was accepted that discrimination against ethnic Russians might be perpetrated by random individuals, but considered that the applicants could seek protection from the authorities or move to another part of the country to avoid the same. It was also considered that the applicants could decide to join their extended family that had already moved to the Russian Federation from Uzbekistan. In relation to their claims under Article 8 of the Convention, 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 United Kingdom after having integrated into the community over a period of five years. Similarly, 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. Nevertheless, it was not considered that their removal would be disproportionate under Article 8 as they had remained in the United Kingdom unlawfully and would be removed together. 17. On 20 July 2009, the applicants submitted further representations through their legal representatives, in which they relied upon compassionate and discretionary grounds which focussed on their family life in the United Kingdom. Those representations also clarified that they were not pursuing their asylum claims and stated: “... it is not contended that there is any continuing asylum, or Humanitarian Protection claim. Although anti-Russian and Government harassment are running at high levels in Uzbekistan, there is insufficient evidence to counter the judicial (and [Home Office]) conclusion, in each of these cases, that those threats do not amount to ‘persecution’ or any risk of ‘serious harm’ upon return. For both mother and son, their claims are compassionate, derived from their family situation in Port Talbot.” 18. On 23 July 2009, those representations were rejected by the United Kingdom Border Agency as not amounting to a fresh human rights claim as it was considered that the applicants’ claim to have established family life in the United Kingdom had already been fully considered both on appeal and in responses to earlier representations. It was not accepted that the relationship between the first applicant and her adult daughter, or the second applicant and his adult sister constituted family life for the purposes of Article 8 of the Convention as they had not submitted any evidence of dependency. Furthermore, it was considered that the applicants could maintain contact with family members in the United Kingdom by the usual methods of communication from overseas. It was considered that the applicants’ removal was necessary and proportionate to the wider interests of maintaining an effective immigration control. 19. On 24 July 2009, the applicants submitted further representations which they claimed raised new and serious concerns about the likelihood of torture of failed asylum seekers forcibly returned to Uzbekistan. Those representations were supported by a letter dated 23 July 2009 from Mr Murray, the former British Ambassador to Uzbekistan from 2002 to 2004, which set out concerns about the fate of anybody deported to Uzbekistan whose exit visa had expired. Mr Murray stated that: “The notoriously cruel Uzbek security service – the SNB – 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. In February 2003, the UN Special Rapporteur on torture, Prof Theo Van Boven, published a report that said that torture in Uzbekistan was a ‘routine investigative technique’. I can absolutely confirm that from experience of hundreds of cases. Any hint that [the applicants] had claimed political asylum in the UK – and the Uzbek SNB are a massive, very efficient and well-equipped intelligence service – and [the applicants] will almost to a certainty be subjected to treatment that well exceed the bar for torture.” 20. Later the same day, the United Kingdom Border Agency refused those representations concluding that they did not amount to a fresh claim. It was noted that Mr Murray had been reprimanded by the Foreign and Commonwealth Office on several occasions in 2003 and 2004, and subsequently dismissed from his post in October 2004 at which point he had been charged with gross misconduct and an investigation had been commenced. Given Mr Murray’s outspoken public views on the human rights situation in Uzbekistan, it was not considered that he could be accepted as an independent source of evidence which would add weight to their claims. 21. Simultaneously, the applicants lodged applications with the Court and requested interim measures under Rule 39 of the Rules of Court to stop their removal to Uzbekistan later that day. 22. On 24 July 2009, the Acting President of the Section to which the application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicants should not be expelled until further notice. 23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 24. Until 4 April 2005, appeals in asylum, immigration and nationality matters were heard by the IAA. Section 101 of the NIA Act 2002 provided that, with the permission of the IAT, a party to an appeal could apply to the IAT against an Adjudicator’s determination on a point of law. Section 103 of the NIA Act 2002 provided that where the IAT had determined an appeal under section 101, a party to the appeal could bring a further appeal on a point of law to the Court of Appeal. It also provided that, in the event that the Court of Appeal upheld any error of law in the determination, it had the power to make any decision which the IAA could have made or to remit the case to the IAA. 25. From 4 April 2005, the then AIT replaced the former system of Adjudicators and the IAT. This in turn has been replaced by the Immigration and Asylum Chambers. 26. 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. 27. Section 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 as follows: “When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules 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.” 28. 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. Secretary of State for the Home Department [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.” 29. 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. 30. Country guidance determinations of both the former AIT and IAT are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. 31. In the country guidance determination of OM (Returning citizens – minorities – religion) Uzbekistan CG [2007] UKAIT 00045, the AIT considered a large amount of objective evidence in relation to the general human rights situation in Uzbekistan and heard evidence from Mr Murray (see paragraph 19 above). 32. In relation to Mr Murray’s evidence, the AIT commented as follows: “We have some concern about Mr Murray’s evidence. He is in an unusual position and it has given us cause to reflect on the weight which we should give to his opinion. We say that for this reason. Mr Murray has produced a short statement which is entirely unsourced. He has given evidence during the course of which he gave an indication in general terms as to some of the sources which he relies upon. In one aspect, the return of the German failed asylum seekers, there was express source, namely the German Ambassador. Having said that his report was unsourced, we acknowledge that he is not an expert of an academic nature who relies upon the reports of others for their information. Rather, he had been the United Kingdom’s Ambassador in Uzbekistan for two years or so and is therefore a person who has had an exceptional opportunity to observe and obtain information. We also acknowledge that, the Uzbekistan Government having ejected much of the foreign press, and many NGOs, there is limited opportunity for obtaining information about what is going on there. ... We are left with the impression that although Mr Murray is in a unique position to assist us about Uzbekistan, he also has interests of his own which may effect, consciously or otherwise, the interpretation which he puts on facts and events. We have therefore decided that although the factual incidents of which he speaks are likely to be reliable, we should treat with some circumspection his interpretation of them. That is not to say that we reject his interpretation out of hand. We are fortunate in this case that there is also a great deal of background evidence from other sources.” 33. In light of the above and other considerations, the AIT then held as follows: “We are not satisfied that it is not possible to obtain a passport renewal outside Uzbekistan. We say that because the appellant’s husband has recently returned there and he will in all probability have had to obtain some form of travel document. He arrived with the appellant in 1996. We have not been told of any difficulty on his part. ... The fact that he has returned undermines Mr Murray’s assertion that it is not possible to get documentation. We accept he may not have been issued with an actual passport but that does not matter. It is the fact he was in possession of an official document that enabled him to return, apparently without difficulty, which is important. His return also detracts very considerably from Mr Murray’s evidence, and the appellant’s mother-in-law’s assertion, that there is severe punishment for those who do return, having stayed away beyond the end of their exit visa. The appellant is still in communication with her mother-in-law and we have no doubt that if her former husband had been charged, or even imprisoned, as a result of returning after a long absence, she would have heard about it and we would have been told. We find there is no satisfactory evidence that it is not possible to obtain a travel document (whether it be a renewed passport or some other form of documentation). Nor is there any satisfactory evidence to show that a returnee is likely to be punished for having been out of the country longer than permitted.” 34. The AIT further 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. Furthermore, 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. 35. In his report of 3 February 2003, the Special Rapporteur concluded that torture or ill-treatment was “systematic” in Uzbekistan. He also stated that “the pervasive and persistent nature of torture” throughout the criminal investigative process in Uzbekistan could not be denied. Uzbekistan has not extended a further invitation to the Special Rapporteur on Torture to visit the country, despite repeated requests. 36. In its Concluding Observations upon Uzbekistan of 26 February 2008, the Committee against Torture set out its concerns about, inter alia, “numerous, ongoing and consistent” allegations concerning the 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. 37. Furthermore, after setting out information about the numerous allegations of excessive use of force and ill-treatment by Uzbek military and security forces during the May 2005 events at Andijan (when at least several hundred protesters were killed by the Uzbek authorities), the Committee reported that it had received credible reports that some persons who had sought refuge abroad and had been returned to the country had been kept in detention in unknown places and possibly subjected to breaches of the Convention. 38. In its Concluding Observations upon Uzbekistan of 7 April 2010, the Human Rights Committee set out various concerns, including, inter alia: “the continued reported occurrence of torture and ill-treatment, the limited number of convictions of those responsible, and the low sanctions generally imposed, including simple disciplinary measures, as well as indications that individuals responsible for such acts were amnestied and, in general, the inadequate or insufficient nature of investigations on torture/ill-treatment allegations.” 39. The Committee also concluded that it remained “concerned about the need for individuals to receive an exit visa in order to be able to travel abroad”. 4. Reports of non-governmental organisations 40. In its submissions to the United Nations Human Rights Committee dated 28 April 2009 and January 2010, 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 pursuant to extradition requests were held in incommunicado detention, thereby increasing their risk of being tortured or otherwise ill-treated. The submission also set 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 were considered to be particularly vulnerable to being charged under Article 223, as many would not have renewed their permission to travel abroad. 41. In its submissions to the United Nations Human Rights Committee of June 2009 and February 2010, Human Rights Watch set out its concerns about the “atrocious” human rights record of Uzbekistan. It noted that the Government of Uzbekistan continued to refuse access to the country to no fewer than eight United Nations special procedures (the human rights mechanisms established by the United Nations to address either specific country situations or thematic issues) despite their repeated requests for invitations to visit Uzbekistan. It also reported that torture and ill-treatment remained endemic to the criminal justice system in Uzbekistan, and stated that another distinct concern relating to torture and ill-treatment is that of Uzbek refugees and asylum seekers forcibly returned by neighbouring countries, despite the risk of torture and ill-treatment that they face upon return.