CASE OF NNYANZI v. THE UNITED KINGDOM
No violation of Art. 3 (in case of removal to Uganda);No violation of Art. 8 (in case of removal to Uganda)
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi
6. The applicant, who was born in 1965, is a Ugandan national. Her mother and younger siblings live in Kenya. She is the daughter of Evaristo Nnyanzi, who was a government minister in Uganda between 1985 and 1986 and subsequently the TreasurerGeneral of the Democratic Party. 7. The applicant’s father has been detained since 1998 on treason charges. Her father was first arrested in 1986 when the present regime, the National Resistance Movement (NRM), took power. He was ultimately charged with treason and detained. In 1987 she was followed and arrested by two men when she went to visit her father in prison and detained for one day during which she was asked questions about her father’s political life. She escaped after claiming to be unwell and being allowed to visit a local hospital. She subsequently hid at a friend’s house until her father was acquitted and released later in 1987. 8. In October 1996 the applicant’s father disappeared. He was believed to have fled to Kenya, having been warned that he was likely to be rearrested. The family, including the applicant, also went to live in Kenya for a while, but she returned to Uganda in January 1997 hoping that the situation had improved. Towards the end of 1997 she was questioned about her father’s whereabouts and her passport was confiscated. She obtained another passport using her real name but a false date of birth. In July 1998 she again travelled to Kenya and then returned to Uganda. 9. In September 1998 the applicant obtained a ticket and tourist visa for the United Kingdom, originally planning to travel as a tourist. 10. On 21 September 1998 she was at home with family members when plain clothes police officers or soldiers raided the house, looking for evidence. They had brought the applicant’s father with them in handcuffs. The applicant stayed with a friend for a few days and then travelled to the United Kingdom via Germany. 11. On 27 September 1998 the applicant claimed asylum on arrival in the United Kingdom on the basis of her father’s political activities in Uganda. 12. On 21 November 1999 the Secretary of State refused her application for asylum on the ground that she had not herself been involved in any political parties or activities in Uganda and that she had not claimed to have experienced any arrests, detention or significant problems from the time of her father’s release in 1987 until the claimed raid on her home in September 1998. This was considered to be evidence that she would not be of any adverse interest to the Ugandan authorities. Furthermore, she had used the passport she had obtained from the Ugandan authorities through the correct channels in the name of Evelyn Allen Nakato to leave Uganda without apparent difficulties, having previously used this passport to visit Kenya in 1998 for a holiday after which she had returned to Uganda. Despite her claims that her passport in the name of Evarista Nnyanzi had been confiscated earlier by the authorities and that the date of birth on the passport with which she had left Uganda was false, the names were ones which she used and which her parents had given her and she had submitted letters of residence to obtain the passport from the authorities. It was considered that she would not have been able to leave Uganda through normal immigration channels had she been of any particular or adverse interest to the authorities. 13. On 5 July 2000 a Special Adjudicator dismissed the applicant’s appeal against the Secretary of State’s decision to refuse her asylum claim. He found that there was no evidence that she had been deeply associated with her father’s political activities. She held no personal political opinion, had not been politically active and had given no evidence at the hearing to demonstrate that she was any closer to her father than any other family members. Her arrest in 1987 had not occurred because of any imputed political opinion but was rather to inquire about her father. Following her release the authorities had shown no further interest in her. After returning from Kenya in 1997 she continued to live at home and was thus easy to locate. The applicant’s assertion that she was believed by the authorities in Uganda to be involved in rebel activities and to assist her father politically was emphatically rejected. 14. On 26 September 2000 the Immigration Appeal Tribunal (IAT), by a majority of two to one, refused her appeal against the determination of the Special Adjudicator. It found that the Special Adjudicator was not correct in stating that there was no evidence of individuals being at risk of persecution because of the political activities of their relatives, as he should have considered and made a finding on a letter from the Democratic Party before him which contained evidence to the contrary. The Special Adjudicator had also erred in stating that the applicant had claimed to have been followed but never accosted or apprehended after she returned from Kenya in 1997 and it would have been better if he had referred to the applicant’s claim to have gone into hiding when concluding that the authorities had shown no further interest in her after her release. Though the applicant was a credible witness and events in Uganda had given rise to a genuine fear of persecution on her part, she had not been seriously ill-treated when detained for a short time in 1986 and questioned about her father’s political activities. Her representative had conceded at the hearing that she had not been subjected to past persecution. There was no evidence that the authorities were looking for the applicant in the period between her being questioned and her father’s release in 1987. However, it was noted that this may have been because she was in hiding. After the applicant’s father disappeared in October 1997 there was a period before she went to Kenya during which the authorities could have found her at her home and arrested her if they had wanted to do so. They could have arrested her at any time between her return to Uganda in January 1997 and September 1998, except for a brief period from July 1998 during which she returned to Kenya. During this period, the applicant believed that she was being watched and followed. If this was the case and the authorities had as serious an interest in her as she claimed, it was difficult to understand why they had not arrested her. Whilst in late 1997 she was accosted by two men who asked her if she knew where her father was and confiscated her original passport, they did not arrest her or subject her to the persecution she claimed to fear. If she was correct and the authorities were looking for her father they were as likely to obtain information from her during that period as they would be during the period after he was detained. 15. The IAT also dismissed the applicant’s assertion that the authorities believed her to be involved in rebel activities and to have assisted her father politically. It considered that the authorities could have arrested the applicant either during the periods outlined above or in September 1998, when they brought her father to the house in handcuffs when she was present. There was no claim that the applicant or any other member of the family present at that time had been arrested. The evidence showed that the only real interest the authorities had in the applicant was in discovering her father’s whereabouts. They no longer needed this information since he was in custody. Though the applicant sought to argue that the Ugandan authorities might still wish to obtain information from her, which would assist the conviction of her father or his associates, it was likely that they were looking for incriminating evidence when they searched the home in September 1998. However they did not arrest the applicant. Having regard to the country information reports, the tribunal also found that there was no evidence that family members of political opponents were negatively associated or as a result persecuted in any way. 16. The two-member majority of the IAT did not find that the applicant had established a reasonable degree of likelihood that, as a family member of an opposition politician, she would herself be at risk of persecution. The minority member, however, considered that the applicant, because of her father’s political position, would be perceived by the Ugandan Government as a political opponent. Moreover, the Government might attempt, by use of force if necessary, to obtain evidence from her to be used against her father at trial. The majority of the IAT recommended on humanitarian grounds that the Secretary of State reconsider the applicant’s position, in the light of her genuine subjective fear of returning to Uganda. 17. On 16 October 2000 the IAT refused the applicant permission to appeal to the Court of Appeal on the basis that the grounds of appeal did not disclose any arguable point of law. 18. By a letter dated 13 February 2001 the applicant made further representations to the Secretary of State claiming that her removal from the United Kingdom would be a breach of the latter’s obligations under Articles 3, 5, 8, 9 and 10 of the Convention and the Human Rights Act 1998. 19. By a letter dated 4 June 2001 the Secretary of State rejected these representations, inter alia, on the basis that the Special Adjudicator and IAT had addressed all the reasons in their determinations and that the concerns raised under Article 8 in relation to difficulties the applicant might suffer in Uganda did not engage the United Kingdom’s obligations. 20. On 11 January 2005 an Adjudicator refused the applicant’s human rights appeal under section 65(1) of the Immigration and Asylum Act 1999 (“1999 Act”, see paragraph 27 below). He was of the opinion that as the applicant’s claim had been considered and dismissed by both a Special Adjudicator and the IAT, albeit on a majority decision, he needed to consider whether there were any circumstances that had arisen since the date of the IAT’s decision that would provide exceptional circumstances sufficient to engage Article 3. Though the current conditions in Uganda were certainly no better than they were at the time the applicant had left the country, there was nothing to suggest that they had seriously deteriorated or that the position of her father had worsened. The Adjudicator noted that the applicant’s cousin had informed her that the remainder of her family were well in Uganda and that her legal representative had conceded that there was no emphatic ground to contend that Article 3 would be breached should the applicant be returned to Uganda. He further observed that, with commendable honesty, the applicant’s legal representative had accepted that the Article 3 claim would be hard to uphold and had rather sought to concentrate on the Article 8 claim. As regards the applicant’s submissions under Article 8, the Adjudicator found that the applicant had established a private and not family life in the United Kingdom as the relationship she enjoyed with a male friend did not constitute family life. Though she had established a private life during her stay in the United Kingdom in excess of six years, revolving around her employment in a church and her accountancy studies, her removal to Uganda, however sympathetic one might be to her circumstances, would not be disproportionate. 21. In mid-February 2005 the applicant was detained with a view to effecting her removal from the United Kingdom and removal directions were set for her return to Uganda on 19 February 2005. 22. On the evening of 18 February 2005 the applicant’s solicitors obtained an injunction from a High Court judge over the telephone restraining the Secretary of State from removing the applicant from the United Kingdom. 23. On 19 February 2005 the applicant issued an application for permission to apply for judicial review of her removal directions on the basis that her removal would be in breach of her rights under the Convention. 24. By an order dated 1 April 2005, the applicant’s application for permission to apply for judicial review was refused by a High Court judge following consideration of the documents. The judge refused the application holding that it was an abuse of process and merely an attempt to frustrate her removal directions since there had been no application for permission to appeal against the Adjudicator’s determination dated 11 January 2005. 25. By a letter dated 27 March 2006 the Secretary of State refused the applicant discretionary leave to remain in the United Kingdom and found that the applicant’s further submissions did not amount to a fresh claim. All the points raised in her submissions had already been addressed when the applicant’s earlier claim had been determined and they were not significantly different from the material that had previously been considered. The applicant’s fears that she might be detained, tortured or subjected to degrading treatment given the manner of her escape were considered speculative as she had provided no evidence to support this claim. The applicant had failed to provide any evidence that the Ugandan authorities were of the opinion that she could assist them with any inquiries regarding her father. No new or compelling evidence had been provided. Article 8 had already been considered during her appeal against the refusal of her human rights application and all the issues she had raised in her current representations had also been raised before and considered thoroughly by the Adjudicator. Furthermore, the applicant had the opportunity to apply for permission to appeal against the Adjudicator’s determination of 11 January 2005 but had failed to do so. 26. Following the application of Rule 39 and communication of this case to the Government for their observations, the applicant was released from detention and granted temporary admission into the United Kingdom, with a requirement to report on a fortnightly basis. The Government confirmed in writing that, as a result of the Rule 39 indication, the applicant would not be removed from the United Kingdom pending the conclusion of the proceedings before the Court. 27. Paragraph 23 of the Immigration and Asylum Act 1999 (“1999 Act” in force at the relevant time) provided: “(1) If the Immigration Appeal Tribunal has made a final determination of an appeal brought under Part IV, any party to the appeal may bring a further appeal to the appropriate appeal court on a question of law material to that determination. (2) An appeal under this section may be brought only with the leave of the Immigration Appeal Tribunal or, if such leave is refused, of the appropriate appeal court. (3) “Appropriate appeal court” means— (a) if the appeal is from the determination of an adjudicator made in Scotland, the Court of Session; and (b) in any other case, the Court of Appeal.” 28. Section 65 under Part IV of the 1999 Act stipulates as follows: “(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person’s entitlement to enter or remain in the United Kingdom, acted in breach of his human rights may appeal to an adjudicator against that decision unless he has grounds for bringing an appeal against the decision under the [1997 c. 68.] Special Immigration Appeals Commission Act 1997. (2) For the purposes of this Part, an authority acts in breach of a person’s human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the [1998 c. 42.] Human Rights Act 1998. (3) Subsections (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration Acts relating to the appellant’s entitlement to enter or remain in the United Kingdom, acted in breach of the appellant’s human rights. (4) The adjudicator, or the Tribunal, has jurisdiction to consider the question. (5) If the adjudicator, or the Tribunal, decides that the authority concerned acted in breach of the appellant’s human rights, the appeal may be allowed on that ground.” 29. Paragraph 22 (1) of Schedule 4 to the 1999 Act provided: “(1) Subject to any requirement of rules made under paragraph 3 as to leave to appeal, any party to an appeal, other than an appeal under section 71 (removal of asylum claimants to safe third countries), to an adjudicator may, if dissatisfied with his determination, appeal to the Immigration Appeal Tribunal. (2) The Tribunal may affirm the determination or make any other determination which the adjudicator could have made.” 30. Section 82 of the Nationality, Immigration and Asylum Act 2002 (“2002 Act”) reads, as relevant: “1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator. (2) In this Part “immigration decision” means— (a) refusal of leave to enter the United Kingdom, (b) refusal of entry clearance, (c) refusal of a certificate of entitlement under section 10 of this Act, (d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain, (e) variation of a person’s leave to enter or remain in the United Kingdom if when the variation takes effect the person has no leave to enter or remain, (f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom, (g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom), (h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal), (i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family), (j) a decision to make a deportation order under section 5(1) of that Act, and (k) refusal to revoke a deportation order under section 5(2) of that Act...” 31. Section 101 of the 2002 Act states that: “A party to an appeal to an adjudicator under section 82 or 83 may, with the permission of the Immigration Appeal Tribunal, appeal to the Tribunal against the adjudicator’s determination on a point of law.” 32. Regulation 3 of the Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) Order 2003 (“Commencement Order 2003”) provided: “(1) Subject to Schedule 2, the new appeal provisions are not to have effect in relation to events which took place before 1 April 2003 and notwithstanding their repeal by the provisions of the 2002 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to such events.” 33. Regulation 4(3) of the Commencement Order 2003 specified that an event had taken place under the old Immigration Acts where inter alia (a) a notice was served or (b) a decision was made or taken. 34. The Nationality, Immigration and Asylum Act 2002 (Commencement No. 4) (Amendment) (No. 2) Order 2003 (“Commencement Amendment Order 2003”) amended the Commencement Order 2003. Article 4, which came into force on 9 June 2003, amended the transitional provisions for appeals by applying sections 101(1) to (3), 102 and 103 of the 2002 Act (which relate to further appeals by a party to an appeal to an Adjudicator, and to statutory review of decisions of the Immigration Appeal Tribunal upon applications for permission to appeal against an Adjudicator’s determination) in relation to an appeal under Part IV of the 1999 Act which was determined by an Adjudicator on or after 9 June 2003. 35. Paragraph 353 of the Immigration Rules (HC 395, as amended by HC 1112) states that: “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.” 36. Paragraph 3.7.12 of the Home Office Operational Guidance Note on Uganda issued on 15 January 2007 states: “Despite the relaxation on the rules governing political parties and the move towards multi-party politics, opposition political parties continued to face restrictions on their ability to assemble and organise and their supporters were subject to harassment and sometimes ill-treatment by the authorities. Some opposition supporters were detained by the security forces and some face charges of treason. However, others who were similarly detained were released without charge. In some cases particularly those of prominent members of political parties or those accused of treason who have been detained for long periods of time and who have suffered illtreatment at the hands of the Ugandan authorities a grant of asylum or Humanitarian Protection may be appropriate. However, in other cases such as that of a low level activist detained for few days and then released without charge the harassment suffered will not reach the level of persecution or breach Article 3 of the ECHR and therefore they will not qualify for grant of asylum or Humanitarian Protection.” 37. The U.S. State Department (USSD) Report on Human Rights Practices in Uganda released on 8 March 2006 states at paragraph 1(f) that: “There were reports that the government punished family members of suspected criminals and political opposition members.” However the next USSD Report on Uganda released on 6 March 2007 explains at paragraph 1 (f) that: “Unlike in the previous year, there were no reports that the government punished family members of suspected criminals and political opposition members.” 38. The Immigration and Refugee Board of Canada’s report entitled “Uganda: Treatment of family members of political opponents and suspected members of rebel movements such as Allied Defence Forces (ADF) and the Lords Resistance Army (LRA)” published on 4 October 2000 cites the following incident: “A mother of an alleged ADF rebel chief, Jamil Mukulu, whom security forces questioned several times regarding her son’s whereabouts, was reportedly harassed and tortured by members of the Directorate of Military Intelligence (The Monitor 16 August 1999).”