A.I. v. THE NETHERLANDS

THIRD SECTION

DECISION

Application no. 36196/16
A.I.
against the Netherlands

The European Court of Human Rights (Third Section), sitting on 20 November 2018 as a Committee composed of:

Dmitry Dedov, President,
Alena Poláčková,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 21 June 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr A.I., is a Sudanese national, who was born in 1993 and lives in the Netherlands. He was represented before the Court by Ms L. Sinoo, a lawyer practising in Utrecht who has also assisted the applicant throughout most of the domestic proceedings set out below. The Committee decided of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court.

A. The circumstances of the case

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

3. On 14 June 2010 the applicant arrived in the Netherlands where he applied for asylum, claiming fear of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On the next day the immigration authorities held a first interview (eerste gehoor) with the applicant about his identity, nationality and travel itinerary. The applicant stated among other things that he belonged to the Zaghawa tribe but did not speak the Zaghawa tribal language. He spoke only Arabic. His mother had died and, before leaving Sudan, he had lived near Geneina, the capital of West Darfur, with his father, stepmother and two stepsisters. He had travelled concealed in boats and trucks to the Netherlands. He did not have any travel or identity documents and his journey had lasted about one month.

4. On 12 October 2010 a further interview (nader gehoor) was held with the applicant about his reasons for seeking asylum. In this interview, the applicant stated that his father was active for the Al-Ade wa Al Musawat (Justice and Equality Movement (“the JEM”)), an opposition organisation in Sudan. The applicant himself had never been politically active in Sudan, had never been arrested and had never experienced any serious problems related to his ethnic origin. He fled Sudan after having been involved in an incident in which a security official had been stabbed, who had sought to check goods, in which weapons were concealed, transported on a cart by the applicant and another young man. The applicant did not submit any documents or other items to substantiate his claim.

5. A written record of this further interview was drawn up and the applicant was given the opportunity to submit corrections and additions. On 15 November 2010 the applicant’s lawyer informed the immigration authorities that the record had been discussed with the applicant and that there was no cause to file corrections or additions.

6. On 10 December 2010, accepting that he belonged to a non-Arab population group and hailed from Darfur, the applicant was granted temporary asylum under a country-specific protection policy for asylum seekers from Darfur.

7. On 11 September 2012 the Deputy Minister of Justice (Staatssecretaris van Justitie) informed the Lower House of Parliament (Tweede Kamer) that the Government had decided to end the this protection policy for asylum-seekers from Darfur as − according to an official country assessment report (ambtsbericht) on Sudan issued by the Ministry of Foreign Affairs in June 2012 − the general security situation in Darfur had improved. In taking this decision, the nature of violence in Sudan and the policy of other countries of the European Union had also been taken into account. The termination of the protection policy at issue entered into force on 6 November 2012.

8. As the ground for granting the applicant asylum had changed, his asylum statement was reviewed and, as doubt had arisen about his actual origin, he was invited on 12 April 2013 to take a language analysis test. Such a test is meant to provide an asylum seeker with an opportunity to substantiate his claim about his origin and ethnicity.

9. On 25 April 2013 a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; “IND”) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie). The conclusion of this language analysis was that the applicant was unequivocally identified as originating from (“eenduidig te herleiden tot”) the linguistic community in Sudan. The report further stated that, although it could be assumed, on the basis of his manner of speaking Arabic, that the applicant belonged to a non-Arab population group, nothing in his speech indicated a Darfur origin. Specific features of Arabic spoken in Darfur were absent in the applicant’s manner of speaking Arabic. Given his poor knowledge about the Zaghawa (Zaghawa words and customs), it was further found improbable that the applicant belonged to this ethnic group. The report specified that the analyst was born and raised in Darfur and had a knowledge of both Sudanese Arabic as well as the Fur language at mother-tongue level. In addition he had a good command of English and standard Arabic.

10. On 21 June 2013 the Deputy Minister of Security and Justice notified the applicant of his intention (voornemen) to withdraw the applicant’s asylum-based residence permit. Given the conclusion of the language analysis, the Deputy Minister found that the identifying data (identificerende gegevens) given by the applicant had been incorrect. Apparently the applicant did not in fact hail from Darfur. Had this been known, he would not have been granted asylum. The applicant was invited to submit written comments (zienswijze) on the Deputy Minister’s intended decision but did not avail himself of this possibility.

11. By a decision of 17 September 2013 the Deputy Minister withdrew the applicant’s asylum-based residence permit. The applicant filed an appeal.

12. In its judgment of 28 February 2014, following a hearing held on 24 January 2014 which was attended by the applicant who was assisted by counsel, the single-judge Chamber (enkelvoudige kamer) of the Regional Court (rechtbank) of The Hague sitting in ‘s-Hertogenbosch rejected the applicant’s appeal. Noting the manner in which the language analysis had been conducted, the Regional Court accepted the Deputy Minister’s decision and underlying reasons for withdrawing the applicant’s residence permit. Although possible, there is no indication in the case file that the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State.

13. On 27 October 2015 the applicant filed a fresh asylum application, submitting a number of documents, namely:

- an official extract from the General Birth Register of the Republic of Sudan, dated 6 July 2015, stating that the applicant was born in Al‑Genaina, Western Darfur;

- a certificate of residence dated 29 June 2014 (certified by the Embassy of the Sudan in the Netherlands on 13 August 2014) of the Al-Genaina Locality of the West Darfur State, certifying that the applicant and the members of his family resided in Al-Geneina town;

- a citizenship certificate dated 29 June 2014 (certified by the Embassy of the Sudan in the Netherlands on 13 August 2014) of the Al-Genaina Locality of the West Darfur State, certifying that the applicant and the members of his family resided in Al-Geneina town;

- a statement issued on 13 August 2014 by the Consul of the Embassy of the Sudan in The Hague certifying that the applicant was of Sudanese origin and stating that he was born in Al-Genaina, West Darfur State; and

- a copy of a school declaration.

14. On the same day, after the applicant had been interviewed by immigration official on his repeat asylum application, the Deputy Minister of Security and Justice notified the applicant of his intention (voornemen) to declare the applicant’s second asylum request inadmissible under the terms of section 30a § 1 (d) of the Aliens Act 2000 (Vreemdelingenwet 2000). Under this provision a fresh asylum application can be declared inadmissible when it is not based on new facts or findings that may be of relevance for the examination of the application (nova). The applicant was invited to submit written comments on the Deputy Minister’s intended decision, which his lawyer did on 28 October 2015.

15. In his decision of 29 October 2015 the Deputy Minister declared the fresh asylum application inadmissible under section 30a § 1(d), considering that, although it appeared from the declaration of the Embassy of Sudan that the applicant was born and registered in West Darfur, this document contained no information about the duration of the applicant’s stay in West Darfur after his birth nor about his ethnic origin. The same applied for the other documents. Consequently, these documents could not be regarded as nova. The Deputy Minister also rejected the applicant’s arguments under Article 3 of the Convention.

16. On 17 November 2015, following a hearing held on 12 November 2015 which was attended by the applicant who was assisted by a lawyer, the single-judge Chamber of the Regional Court of The Hague rejected the applicant’s appeal against the Deputy Minister’s decision. Having noted the extracts of the birth and population register and the declaration of the Sudanese Embassy, it found that it had been established, that the applicant was of Sudanese origin and that he was born in West-Darfur. However, it did not appear from these document that the applicant had actually lived in West-Darfur and, if so, for how long. Accordingly, these documents could not be regarded as “nova”. Furthermore, the Regional Court held that the applicant had failed to establish that, if removed to Sudan, he would risk being called up for military service. It also held that, as it had not been established that the applicant hailed from West-Darfur, there was no reason to consider new facts of changed circumstance where it concerned the general security situation in West-Darfur. As to the applicant’s reliance on A.F. v. France (no. 80086/13, 15 January 2015), the Regional Court noted that – unlike the situation in the applicant’s case – the French Government had in that case failed to challenge the Darfur origin of the applicant in a convincing manner and that the situation in the A.F. case differed in essential parts from that of the applicant’s.

17. The applicant’s further appeal against this judgment was rejected on 29 December 2015 by the Administrative Jurisdiction Division. It held that under section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.

B. Subsequent developments

18. On 23 May 2018 the applicant informed the Court that in the meantime he had filed a fresh asylum application which had not yet been determined. No information was provided about the basis of this new application or about the outcome of this procedure.

C. Relevant domestic law and practice

19. The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act 2000 Implementation Guidelines (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

20. Section 13 of the Aliens Act 2000 provides that an application for a residence permit shall be granted only if:

a) international obligations require this;

b) the presence of the alien would serve a real interest for the Netherlands, or

c) urgent reasons of a humanitarian nature require this.

1. Asylum applications

21. A general overview of the relevant domestic law and practice as regards asylum proceedings has been set out in X v. the Netherlands (no. 14319/17, §§ 34-40, 10 July 2018).

2. Domestic policy in respect of Sudanese asylum-seekers

22. The official country assessment report on Sudan, released by the Minister of Foreign Affairs on 20 June 2017, covering the situation in Sudan in the period between July 2015 and end of May 2017, contains inter alia the following:

“The Sudanese population is a multi-ethnic mix of more than five hundred ethnic groups. The majority (seventy percent) sees themselves as Arabic and considers the African tribes generally as (more or less) inferior. Muslims from the north of the country traditionally dominate the government.

According to the US Department of State, the Muslim majority and the government discriminate ethnic minorities in virtually all aspects of social life. Non-Arabic-speaking citizens also face discrimination in the field of work, education and legislation. Ethnicity is one of the main reasons for violence in the conflict areas.

The division between center-periphery is a dividing line of socio-economic inequality. People from the periphery (Darfur, Abyei, South Kordofan, Blue Nile and East Sudan) are being disadvantaged both inside and outside their home area on the basis of ethnic and/or tribal descent. For example, where it concerns access to work, education or socio-cultural autonomy.

According to one source about one million Fur from Darfur are living in Khartoum and its surrounding area. Most Darfuris are living in poor neighbourhoods in North-Khartoum such as Al Haj Yousef, Halfaya, Shambat and Dar Al-Salam, in the area between the Blue en the White Nile (Mayo, Giref, Abu Adam and Shaqqara) and in Omdurman (Ombada, Abu Serit en Saliha). Sometimes dilapidated neighbourhoods are cleared and their inhabitants forced to move further away from Khartoum. Darfuris and persons hailing from the Two Areas who can afford it are living in better neighbourhoods of the city, including the centre.

The improved economic situation in Khartoum, including improved employment rates, is one of the pull factors of migration from Darfur and the Two Areas to Khartoum. Many find work in the informal sector, for instance as guards, and in construction and agriculture. Many Darfuris work in laundry shops all over Khartoum. Darfuris are also working as university teachers. Because it is difficult for Darfuris and persons originating from the Two Areas to find work in the formal sector, those with an academic degree look for work abroad, for instance in the Gulf States or Europe.

Darfuris and persons originating from the Two Areas are still often referred to by members of Arabic tribes as “slave”. However, despite systematic discrimination Darfuris and persons originating from the Two Areas can maintain themselves reasonable in daily life in Khartoum. They are not as much discriminated by other citizens but by the public order police who extort them and by some authorities. According to sources in Khartoum, Darfuris are not looked down upon because of their ethnicity but because of their bad economic circumstances. ...

In general, it can be said that persons, who are being considered by the Sudanese authorities as a threat, risk upon return to fall victim to human rights violations, including detention and torture. An example might be human rights defenders having profiled themselves as critical. According to various sources, this would only concern a small number of Sudanese asylum seekers. It is assumed that the Sudanese Government monitors activities of opponents abroad but from this side it is not known to what extent and what the consequences thereof are. According to various sources, there are no indications that rejected asylum seekers from Darfur or the Two Areas, after their forced return, have encountered problems upon arrival in Khartoum. Some rejected asylum seekers have been removed from Switzerland and Norway during the reference period. None of them have been arrested upon return.”

23. On 20 November 2017 the Deputy Minister of Justice and Security sent a letter to the Lower House of Parliament (Tweede Kamer der Staten‑Generaal) on the country-specific asylum policy in respect of Sudan. In its relevant part, it reads as follows:

“On 20 June 2017 the Minister of Foreign Affairs has released a new official country assessment report on Sudan, describing the situation in that country from July 2015 up to and including May 2017. Insofar as relevant for policy determination, it appears from this report that the security situation in Darfur as well as in the areas of South Kordofan and Blue Nile has remained as bad as before. A national dialogue between the government and the (armed) opposition, which took place during the reporting period, has brought little change. Although some rebel groups have laid down their weapons, most opposition groups and the most important (armed) opposition group have boycotted the national dialogue. Like during the previous reporting period, the situation in the conflict areas is diffuse and volatile. In the areas, there is still random violence and large numbers of refugees and displaced persons. In South Kordofan and Blue Nile, armed opposition groups continue their battle against the government. In Darfur, the battle dynamics have evolved from rebels versus the government to a multitude of actors in a diversity of conflicts. The highest number of battles in this region does no longer take place between government and rebel forces but in the context of tribal violence.

For the purpose of careful decision-making in individual cases and in order to be able – in assessing these cases – to do justice to the complex and evolving situation, some adjustments to the applicable policy are called for.

The starting point of the country-specific asylum policy in respect of Sudan remains that asylum applications of Sudanese foreign nationals are assessed on the basis of the individual asylum statement of the asylum seeker. At the same time, special policies remain in place for specific population groups and specific areas in Sudan, but certain components must be adjusted.

Under the policy of previous years – in contrast to the other parts of Darfur – West Darfur was not considered as being in a situation as meant in Article 15c of the [Council Directive 2004/83/EC of 29 April 2004] Qualification Directive, because the situation there was relatively calm and stable. However, it appears form the official country assessment report that during the reporting period violent tribal violence, resulting in deaths and large numbers of displaced persons, has emerged also in West Darfur. The reason for the difference in policy between the different parts has thus been cancelled, especially now that most of the fighting takes place in the other parts of Darfur as part of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article 15c of the Qualification Directive is now assumed throughout Darfur. The reason to differ in policy between the different parts has thus ceased to be valid, the more so now also in the other parts of Darfur the most fights occur in the framework of tribal violence. In view of this, the policy has been adjusted in such a way that a situation as referred to in Article 15c of the Qualification Directive is now assumed throughout Darfur.

A further policy adjustment is called for, because it appears from the official report that the security situation has deteriorated for people who are committed to promoting respect for human rights. They are monitored, threatened, arrested, detained, ill-treated and persecuted by the Sudanese security services. Human rights activists are therefore designated as an at‑risk group in the policy. This means that in respect of foreigners, who have demonstrated that they have been active in the field of human rights in Sudan, limited indications suffice to make a plausible case that problems connected with one of the grounds for persecution give rise to a well-founded fear of persecution. However, the individualisation requirement (individualiseringsvereiste) will remain applicable to foreigners who belong to this at-risk group.

It is expected that the above policy adjustments will have limited significance for the granting of permits. The influx of foreigners from Sudan is relatively constant. Moreover, the policy in respect of internal fight or internal relocation to another location in Sudan has remained unchanged.”

24. The policy changes indicated in this letter are included in the decision of 31 May 2018, no. 2018/3, amending the Aliens Act 2000 Implementation Guidelines (Wijzigingsbesluit Vreemdelingencirculaire 2000; “WBV 2018/3”) which entered into force on 13 June 2018. Under the new policy in respect of Sudan only those persons are considered as belonging to a risk-group:who have been active in the field of human rights;who are (alleged) supporters of an armed opposition group. A person is in any event regarded as an (alleged) supporter of an armed opposition group, if he/she belongs to:

- a non-Arab population group, hails from Darfur and had his/her normal residence there before arriving in the Netherlands; or

- a non-Arab population group from the Nuba mountains and had his/her normal residence there before arriving in the Netherlands.

It is further accepted under the new policy and in respect of persons hailing from Darfur and from South Kordofan (including Abyei) and Blue Nile, that in those areas the general situation is such that removal must be regarded as entailing a real risk of incurring serious harm.

D. Relevant international materials

25. In August 2016, a joint report “Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum” was released by the Danish Immigration Service and UK Home Office on joint fact finding missions to Khartoum, Kampala and Nairobi conducted in March 2016. The report focuses on the situation of persons from Darfur and the Two Areas (Southern Kordofan and the Blue Nile State) in Khartoum, including treatment of such persons upon arrival at Khartoum International Airport, treatment by the authorities in Khartoum, prevalence of societal discrimination, and living conditions in Khartoum. Its executive summary reads:

“Sizeable populations from Darfur and the Two Areas reside in Khartoum. There are two main drivers behind the immigration of persons from these areas to Khartoum: the security situation in Khartoum and the socio-economic factors.

Persons with a political profile returning to Sudan may be questioned and/or arrested upon arrival at Khartoum International Airport (KIA) depending on the person’s profile. Seeking asylum abroad would not in itself cause persons from Darfur and the Two Areas problems with the authorities upon return except returnees from Israel. Neither would returnees face severe difficulties with the authorities because of staying abroad for a longer period or travelling with emergency papers. A person’s ethnicity would not generally affect the treatment, he or she would receive on arrival at KIA.

The National Intelligence and Security Service (NISS) acts with impunity. Persons from Darfur and the Two Areas with a political profile are at risk of being targeted by the NISS and its affiliated militias in Khartoum, particularly student activists and persons with an affiliation to rebel groups. The Darfuri and Two Areas communities in Khartoum are monitored by the NISS, principally to identify those with a political profile. Activists at most risk are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains.

Persons from Darfur and the Two Areas have access to documents, housing, education and healthcare in Khartoum. However, the quality of these services is low in the poor neighbourhoods surrounding Khartoum where a majority of these persons live. The main factor regarding access to housing and services is the person’s financial resources. There is in practice limited humanitarian assistance provided in Khartoum to those displaced by violence elsewhere in Sudan. Most Darfuris and persons from the Two Areas work in the informal sector as their access to employment in a number of sectors, particularly the public sector, is limited due to discrimination as well as the general adverse economic conditions in Sudan. Those working illegally, for example women selling tea without a licence, are at risk of arrest and prosecution under Public Order laws as well as harassment and extortion by the police.

Persons from Darfur and the Two Areas, and in particular those of African descent, may experience societal discrimination in Khartoum.

It is possible to travel by road and air between Khartoum and Darfur as well as Khartoum and the Two Areas. A person has to go through checkpoints controlled by different actors (the government, rebel groups and local armed groups). Access to certain parts of the Two Areas is restricted.

In general, Khartoum is a safe place for persons fleeing from a private conflict in their local areas. However, the level of security depends on individual circumstances, particularly whether the other party in the conflict has connections with the authorities.”

26. According to the Swedish Migration Board Country Information Service (Lifos) report of 6 December 2016 on the security situation in Darfur and the situation for internally displaced persons in Khartoum, both the cultural affiliation and the skin colour of a person are of importance in Sudanese society. Reports from several initiated sources state that people are discriminated against in society because of their ethnicity. Which ethnic group a person belongs to affects the understanding of that person’s political affiliation. Human rights activists, political opponents to the regime, leaders in civil society, students, lawyers and journalists risk intimidation from the authorities. They can be arrested and detained by the NISS without charge or trial. People from some non-Arab groups can be perceived as rebel affiliated and people from Darfur with a political profile, can be at risk also in Khartoum.

27. The United Kingdom Home Office Country Policy and Information Note “Sudan: Non-Arab Darfuris”, released in August 2017, states inter alia as follows:

“3.1.1 The security, human rights and humanitarian situation in Darfur continues to be poor. Non-Arab Darfuris in the Darfur region are likely to face human rights violations which amount to serious harm or persecution.

3.1.2 Existing case law has found that non-Arab Darfuris as an ethnic group are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan, including to Khartoum.

3.1.3 The Home Office view is, however, that there is cogent evidence indicating that non-Arab Darfuris are not generally at risk of persecution or serious harm solely on the grounds of their ethnicity in Khartoum. This evidence provides strong grounds to depart from the existing case law of AA and MM.

3.1.4 Rather, a person’s non-Arab Darfuri ethnicity is likely to be a factor which may bring them to the attention of the state and, depending on other aspects of their profile and activities, may lead to a risk of serious harm or persecution in Khartoum.

3.1.5 Darfuris in Khartoum face discrimination in accessing public services, education and employment, experience forced eviction, societal harassment from other Sudanese, and do not have access to humanitarian assistance. However in general such treatment is not so severe that it is likely to amount to persecution but each case will need to be considered on its individual facts.

3.1.6 All returns are to Khartoum. It will generally be reasonable for a person, including those not previously resident in Khartoum, to return to that city but each case will need to be considered on its individual facts. If the person is able to demonstrate a risk of persecution or serious harm from the state in Khartoum, internal relocation to another part of Sudan will not be reasonable. ...

3.1.7 The UK-DIS FFM [the UK Home Office – Danish Immigration Service fact finding missions to Kenya, Uganda and Sudan] report, based on a range of sources, noted:

‘A number of sources stated that they had no information to indicate that failed asylum seekers / returnees from Darfur or the Two Areas would generally experience difficulties on return to Khartoum International Airport (KIA), or they did not consider that claiming asylum overseas would put such a person at risk per se. Western Embassy (C) noted that they had monitored the forced return of two persons from Europe in 2015 and had no reason to believe that they experienced any difficulties or mistreatment, although the source acknowledged that they were not present throughout the arrival procedure. The diplomatic source mentioned that they had experience of a very few rejected asylum seekers being deported from Switzerland and Norway. According to the source it was unclear whether these returnees could get support upon return to Sudan. However the source added that those sent back from Norway had not faced any problems upon return. ...’ ...

3.1.8 The British Embassy in Khartoum observed in September 2016: ‘As reported in our letter of February 2015 ... it remains the case that neither we nor our international partners are aware of substantiated cases of returnees, including failed asylum seekers, being mistreated on return to Sudan.’ ...”

COMPLAINTS

28. The applicant complains that – being born in West-Darfur and belonging to a non-Arab tribe – his removal to Sudan would expose him to a real risk of being subjected to treatment in breach of Article 3 of the Convention.

THE LAW

29. The applicant complained that his removal to Sudan would be contrary to his rights under Article 3 of the Convention. This provision reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. General principles

30. The applicable general principles are set out in, inter alia, Saadi v. Italy ([GC], no. 37201/06, §§ 128‑33, ECHR 2008); R.C. v. Sweden (cited above, §§ 48-51 with further references); F.G. v. Sweden [GC], no. 43611/11, §§ 117-27 with further references, 23 March 2016); J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 79-90 with further references, 23 August 2016); N.A. v. Switzerland (no. 50364/14, §§ 41‑42 with further references, 30 May 2017); and A.I. v. Switzerland (no. 23378/15, §§ 48-49 with further references, 30 May 2017).

B. Application of the general principles to the present case

31. The issue before the Court is whether the applicant, upon return to his country of origin, would face a real risk of being tortured or subjected to inhuman or degrading treatment or punishment as prohibited by Article 3 of the Convention.

32. Since the applicant in the instant case has not already been deported, the material point in time for the assessment of the claimed Article 3 risk is that of the Court’s consideration of the case (see Saadi, cited above, § 133). The Court will make a full and ex nunc evaluation where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, Maslov v. Austria [GC], no. 1638/03, §§ 87-95, ECHR 2008, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 215, 28 June 2011).

33. In examining this matter – and without prejudice to the currently pending asylum application in respect of which no further details have been provided by the applicant – the Court would reiterate its considerations in respect of the general situation in Sudan as set out in the Court’s recent judgments of N.A. v. Switzerland (cited above, § 43) and A.I. v. Switzerland (cited above, § 50). In addition, on the basis of the materials before it, the Court finds that the general situation in Sudan, in particular in Khartoum, is not of such an extreme violent nature as to entail, on its own, that any removal to it of a Sudanese national would necessarily be in breach with the Convention. The Court therefore has to establish whether the applicant’s personal situation is such that his return would contravene with Article 3 of the Convention.

34. Although it was accepted that the applicant is of non-Arab origin and that he was born in West Darfur, his claims of belonging to the Zaghawa tribe and of always having lived in West Darfur before he left Sudan were disbelieved by the domestic administrative and judicial authorities after an extensive investigation and on rational grounds that the Court has no reason to doubt. In this respect the Court notes that the Netherlands administrative and judicial authorities have given extensive reasons for their decision not to attach credence to the applicant’s alleged life-long residence in Darfur and his belonging to the Zaghawa tribe, which claims lay at the heart of his asylum statement. The Court observes that the applicant’s case was examined on the merits by the Deputy Minister, on whose behalf interviews were conducted with the applicant, and by the Regional Court, which held an oral hearing. Moreover, the Administrative Jurisdiction Division considered the applicant’s further appeal but found no grounds to overturn the judgment of the Regional Court of The Hague. The Court lastly notes that the applicant was assisted by a lawyer throughout the proceedings.

35. In so far as the applicant claims a risk of treatment prohibited by Article 3 on account of his non-Arab ethnic origin, the Court observes – having regard to various recent international reports on the situation in the Khartoum region for persons having a non-Arab origin (see paragraphs 22 and 25-27 above) – that the situation for such persons is certainly not ideal and that they may risk falling victim to social discrimination. However, the Court finds that this situation cannot be regarded as being so harrowing that it must be concluded that people of non-Arab origin are at risk of persecution or serious harm in Khartoum, solely on the ground of their ethnicity. It must therefore be established whether any other risk factors are at stake.

36. The Court notes that the applicant has never been politically active in Sudan, has never been arrested and has never experienced any serious problems related to his ethnic origin (see paragraph 4 above). The alleged personal risk of being called up for military service has not been substantiated by the applicant. Furthermore, the Court has found no concrete indication in the contents of the case file indicating a negative interest of the authorities of Sudan in the applicant, either at the material time or currently. There is nothing indicating that these authorities have ever taken any concrete steps aimed at finding out the applicant’s whereabouts.

37. Finally, the Court notes that, unlike the situation in the cases of N.A. v. Switzerland and A.I. v. Switzerland (both cited above), there is no evidence before the Court that the applicant would have been involved in any Sudanese political opposition activities or group abroad and for this reason would have to fear ill-treatment upon his return to Sudan.

38. In these circumstances, the Court cannot but conclude that applicant failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he, if removed to Sudan, would face a real risk being subjected to treatment in breach of Article 3 of the Convention.

39. It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 December 2018.

Fatoş AracıDmitry Dedov
Deputy RegistrarPresident

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