FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4539/11
by Nkechi Clareth AMEH and Others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 30 August 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 20 January 2011,
Having regard to the Acting President’s decision to apply Rule 39 on 1 February 2011,
Having regard to the Chamber’s subsequent decision to lift the interim measure under Rule 39 on 15 March 2011.
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Nkechi Clareth Ameh (“the first applicant”) and her three children, are Nigerian nationals who were born in 1976, 2003, 2005 and 2007 respectively and live in Sunderland.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The first applicant entered the United Kingdom on 17 December 2005 on a valid visit visa, accompanied by her two eldest children. The first applicant remained in the United Kingdom following the expiry of her visa and did not come to the attention of the authorities until she claimed asylum in July 2009.
4. The basis of her claim was that she had married in 2002 and, when her eldest daughter was born in 2003, her husband’s family had raised the idea of having both her and the first applicant herself circumcised. Both the applicant and her husband had been averse to the idea. However, the applicant and her husband had separated when she was pregnant with her son, who was born in 2005, and their marriage ended definitively in 2009. Her third child, a girl born in the United Kingdom in 2007, was the result of a brief reconciliation with her husband. The applicant claimed to fear that, without the support of her husband, she would not be able to withstand his family’s pressure to have her two daughters, and herself, circumcised.
5. Her asylum claim was refused on 15 April 2010. The Secretary of State noted that the applicant was no longer in contact with her husband or his family. The applicant had remained in Nigeria following her first daughter’s birth, and even after separating from her husband, indicating that she did not genuinely fear her in-laws. Her last noted address had been in Lagos, which was not where her in-laws lived. It was therefore believed that she could return to that city or relocate elsewhere in Nigeria and thus avoid her ex-husband’s family, who would not be aware of her return, given their lack of contact. Furthermore, the background evidence indicated that the Nigerian authorities were taking steps to combat female genital mutilation (“FGM”) and had successfully outlawed the practice in several states. There were a number of women’s non-governmental organisations that could offer support to the first applicant. It was therefore considered that there was a sufficiency of protection available to her. She also had family, including two brothers, living in Nigeria and would therefore have a support network. Her claim was certified as clearly unfounded, meaning that she could not appeal against the refusal of asylum from within the United Kingdom.
6. The first applicant was advised by her legal representatives that any application for judicial review of the decision to certify her claim had a very poor chance of succeeding, as her claim was weak. Since her case was publicly funded, her representatives could not bring such an application on her behalf given that there was no reasonable prospect of success. As a result of the withdrawal of publicly funded legal assistance, the first applicant did not seek judicial review of the certification of her asylum claim as clearly unfounded.
7. Directions were set for the applicants’ removal on 4 February 2011. On 20 January 2011, the applicants sought an interim measure from this Court in order to prevent their removal. On 1 February 2011, the Acting President of the Fourth Section, to which the case had been allocated, indicated to the Government of the United Kingdom that the applicants should not be removed until further notice. Upon further consideration of the case, the Section on 15 March 2011 lifted the interim measure previously indicated. The applicants notified the Court on 25 March 2011 that, notwithstanding the lifting of the interim measure under Rule 39, they wished to continue with their complaints under the Convention.
B. Relevant domestic law
8. Section 94(2) of the Nationality, Immigration and Asylum Act 2002, as amended by the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, provides that, where a person has made an asylum or human rights claim and the Secretary of State has certified that that claim is clearly unfounded, the person may not bring an appeal whilst still in the United Kingdom. A claim will be certified as clearly unfounded only where, taking the claim at its highest, on any legitimate view it could not succeed.
9. The only means by which a person can challenge the certification of their claim under section 94(2) is by judicial review. The test that will be applied by the courts is whether, based on the material before the Secretary of State, there is a realistic prospect that an Immigration Judge, applying the rule of anxious scrutiny, would uphold an appeal (see R (on the application of YH) v. Secretary of State for the Home Department [2010] EWCA Civ 116, paragraphs 20-21).
COMPLAINT
10. The applicants complained that their removal to Nigeria would amount to a violation of Article 3. They claim that the females of the family are at risk of FGM at the hands of the family of the first applicant’s ex-husband. The first applicant also claims that she has a heart condition for which she is receiving treatment in the United Kingdom, and should not therefore be removed to Nigeria.
THE LAW
11. Article 3 of the Convention provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
12. The Court recalls its constant case law that Contracting States have the right as a matter of international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑...). However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country (Saadi v. Italy [GC], no. 37201/06, § 125, ECHR 2008-...). The assessment of whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005‑I). These standards imply that the ill‑treatment the applicant alleges he or she will face if returned must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this is relative, depending on all the circumstances of the case (Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001‑II).
13. In the present case, the Court observes, as did the Secretary of State in refusing the first applicant’s asylum claim, that there are elements of the case which tend to indicate that the applicants’ alleged fear of return to Nigeria is neither genuine nor objectively well-founded. Such elements include the fact that the first applicant entered the United Kingdom as a visitor and did not mention any fear of returning to Nigeria. She subsequently remained in the United Kingdom after the expiry of her visit visa but did not claim asylum, and claimed asylum only after being in the United Kingdom for over three years. The Court takes the view that Contracting States are entitled to find that a failure to claim asylum as soon as reasonably possible is not generally compatible with the actions of a genuine asylum seeker, who has fled their own country due to a real fear. Moreover, as was noted by the Secretary of State, the first applicant remained in Nigeria for some months even after separating from her husband, indicating that she did not feel herself or her children to be at real risk from her in-laws even without the support of her husband. Again, the Court finds that such behaviour is relevant and should be taken into consideration when determining whether a person has a genuine fear in their country of origin.
14. Even leaving aside the question of whether the applicant has a genuine subjective fear, a matter upon which the factors noted above cast some doubt, the Court finds that the Secretary of State was entitled to find that any fear she might have was not objectively well-founded, for the reasons set out in the refusal letter of 15 April 2010. Specifically, that the first applicant was not in contact with her ex-husband’s family and there was therefore no reason that they would know of the applicants’ return to Nigeria; that the applicants could relocate to a part of the country far from where the first applicant’s in-laws lived and thus avoid them; and that there was protection and support available to the applicants, if needed, from the Nigerian authorities, various women’s non-governmental organisations, and the first applicant’s family. The Court therefore concludes that the first applicant’s asylum claim was refused for sound and convincing reasons, which this Court has been given no reason to doubt. It follows that the applicants have not established that they face a real risk of ill-treatment if returned to Nigeria.
15. Turning to the issue of the applicant’s alleged heart condition, the Court recalls the Grand Chamber’s findings in the case of N. v. the United Kingdom [GC], no. 26565/05, §§ 42-45, 27 May 2008, that the decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. The Grand Chamber upheld in N. the very high threshold for Article 3 in the context of ill-health that had been set out in D. v. the United Kingdom, 2 May 1997, Reports of Judgments and Decisions 1997‑III.
16. The Court observes that while the first applicant stated in the course of her asylum claim that she was suffering from hypertrophic cardiomyopathy, a heart condition, she did not submit any medical evidence to permit this element of her claim to be assessed. The Secretary of State found in any event that there were adequate healthcare facilities available in Nigeria and that therefore the first applicant did not meet the high threshold for health claims under Article 3.
17. The first applicant has submitted to the Court a letter dated 7 May 2009 from a consultant cardiologist. The letter states that the applicant was taking beta blockers and had complained of some side effects, including dizziness, tiredness and breathlessness when she exerted herself. It stated that she was, however, still capable of working as a hairdresser. The applicant had a further appointment booked for August 2009. There has been no further or more recent medical evidence submitted to the Court which would give a clearer picture of the first applicant’s current state of health. Nor has any evidence been submitted regarding the availability of treatment for the first applicant’s condition in Nigeria. Accordingly, the Court finds no reason to question the background evidence cited by the Secretary of State in the letter refusing the first applicant’s asylum claim, to the effect that there is adequate healthcare available in Nigeria, though it may not be of the same standard as in the United Kingdom. Given that there is no evidence to indicate that the first applicant’s state of health is grave; that it is likely to worsen should she be removed to Nigeria; or that she would be unable to access suitable treatment there, the Court finds that she has not established that her case discloses very exceptional circumstances, as found to be present in D., cited above. Her case does not therefore meet the high threshold of Article 3.
18. For all of the foregoing reasons, the applicants’ complaint under Article 3 is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy