FOURTH SECTION
DECISION
Application no. 65093/10
by Khaled Mohammed M ORARA
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 4 October 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas Bratza,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Khaled Mohammed M Orara, is a Libyan national who was born in 1984. His current whereabouts are unknown. He was represented before the Court by the British Libyan Solidarity Campaign.
A. The circumstances of the case
1. Initial proceedings
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant entered the United Kingdom on 4 February 2008 on a student visa. Leave to remain was renewed until 31 May 2010. He claimed asylum on 27 April 2010. The basis of the asylum claim was that he had become involved in the anti-Gaddafi organisation, the British Libyan Solidarity Campaign. He was sent by the BLSC to Libya on two visits to take photographs documenting the decay which had taken place under the Gaddafi regime. During the second visit, he was arrested by the police and detained for five hours. He was released and told to report for further questioning the next day. He instead returned to the United Kingdom. There he had become involved in further political activities in London against the Gaddafi regime, particularly demonstrations outside the Libyan Embassy. He claimed that there was a man present at one of the demonstrations. They recognised each other from Libya and the applicant believed the man would report him to the Libyan authorities for his opposition activities. His mother had also telephoned to tell him that the police had come to the family home and had taken away their computer.
On 25 May 2010, while the Secretary of State was still considering the applicant’s asylum claim, Colonel Gaddafi’s son, Saif al-Islam, visited the London School of Economics to deliver a lecture, after he had donated GBP 1.5 million to the university. The applicant and others organised a protest outside the LSE. A counter-demonstration also took place by
pro-Gaddafi supporters. A scuffle broke out in which anti-Gaddafi protesters, including it appears the applicant, were injured. It further appears from video recordings available on the internet site “YouTube” that the
pro-Gaddafi supporters took photographs and made video recordings of the anti-Gaddafi protesters.
The applicant’s asylum claim was refused by the Secretary of State on 27 May 2010. The entirety of the applicant’s account was rejected. In respect of the protests outside the Libyan Embassy, the Secretary of State contended that the applicant had failed to provide any evidence that the Libyan authorities would be able to identify him from photographs taken outside the Embassy. Relying on the Court of Appeal’s judgment in SS (Iran) (see relevant domestic law and practice below), the Secretary of State considered the applicant’s sur place political activities to be
self-serving.
The applicant’s appeal to the First-tier Tribunal (Immigration and Asylum Chamber) was rejected on 13 July 2010. The Tribunal heard evidence from the applicant and the member of the British Libyan Solidarity Campaign who had allegedly sent him to Libya. The Tribunal found neither to be a reliable witness. Their evidence was internally inconsistent and inconsistent with the background country materials regarding treatment of suspected political dissidents by the Libyan authorities.
In respect of the applicant’s activities in London, including the protest at the LSE, the Tribunal took note of the Court of Appeal’s judgment in SS (Iran) and its later judgment of YB (Eritrea) (see also relevant domestic law and practice below). The Tribunal found, however, that each appeal had to be determined on its own set of facts and, in the applicant’s appeal, the Tribunal found that the applicant had begun his sur place activities shortly before his student visa was to expire. The Tribunal further found that the applicant’s activities were self-serving and undertaken with the intention to aid his asylum claim. If any photographs reached the Libyan Embassy, and if the applicant were identified in any photograph at all, he was likely to be treated as a hanger-on with no real commitment to the opposition cause.
Applications to appeal were refused by a Senior Immigration Judge of the First-tier Tribunal and the Upper Tribunal on 17 August and 15 September 2010 respectively.
Removal directions were then set for the applicant’s return to Libya on 12 November 2010. On 8 November 2010 the applicant lodged an application with this Court. On 11 November 2010 the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be removed to Libya.
2. Subsequent events
On 29 August 2011, the Section Registrar wrote to the applicant enquiring whether, in the light of recent events in Libya, he still maintained that he would be at real risk of ill-treatment if returned there. No reply was received from the applicant but, on 8 September 2011, the Agent of the Government of the United Kingdom (to whom the letter to the applicant had be copied) informed the Court that it was the Government’s understanding that the applicant had left the United Kingdom on 8 April 2011. The Agent stated that the United Kingdom Border Agency had been approached on 7 March 2011 by the applicant, who requested that UKBA return his passport as he wished to leave the United Kingdom. UKBA advised him that he would need to purchase a ticket giving UKBA ten working days’ notice in order for arrangements to be made for his passport to be returned to him. As a result, UKBA returned the passport on 5 April 2011 and it was understood that the applicant departed from the United Kingdom on a British Airways flight to Tunis on 8 April 2011 from Gatwick airport, having purchased his own ticket and having made all the arrangements himself. The Agent apologised that the information had not been brought to the Court’s attention sooner. UKBA’s guidance provided for all interested parties to be informed in these circumstances. UKBA would remind
case-workers that the Court would be an interested party for these purposes where a Rule 39 measure was in place.
B. Relevant domestic law and practice
On 10 April 2008, the Court of Appeal handed down its judgment in the case of SS (Iran) v. the Secretary of State for the Home Department [2008] EWCA Civ 310, which concerned an Iranian asylum seeker who claimed that he would be at risk if returned to Iran because of his involvement in the United Kingdom with a Kurdish political party known as Komala.
In remitting the appeal to the Asylum and Immigration Tribunal to be heard before a different Immigration Judge, Lord Justice Neuberger, with whom Lord Justice Sedley and Lord Justice Ward agreed, found:
“There must be a limit as to how far an applicant for asylum is entitled to rely on publicity about his activities in the UK against the government of the country to which he is liable to be returned. It seems to me that it is not enough for such an applicant simply to establish, as here, that he was involved in activities which were relatively limited in duration and importance, without producing any evidence that the authorities would be concerned about them, or even that they were or would be aware of them.”
However, in YB (Eritrea) v. the Secretary of State for the Home Department [2008] EWCA Civ 360, which was handed down on 15 April 2008, the Court of Appeal took the following approach to the issue of sur place activities. The case involved an Eritrean asylum seeker who claimed to have been active in support of the opposition Eritrean Democratic Party whilst in the United Kingdom. The Court of Appeal again remitted the issues arising from sur place activities to be heard before a differently constituted Asylum and Immigration Tribunal. Lord Justice Sedley, with whom Lord Justice Wilson and Lord Justice Tuckey agreed, stated:
“... the Tribunal, while accepting that the appellant’s political activity in this country was genuine, were not prepared to accept in the absence of positive evidence that the Eritrean authorities had ‘the means and the inclination’ to monitor such activities as a demonstration outside their embassy, or that they would be able to identify the appellant from photographs of the demonstration. In my judgment, and without disrespect to what is a specialist tribunal, this is a finding which risks losing contact with reality. Where, as here, the tribunal has objective evidence which ‘paints a bleak picture of the suppression of political opponents’ by a named government, it requires little or no evidence or speculation to arrive at a strong possibility, - and perhaps more – that its foreign legations not only film or photograph their nationals who demonstrate in public against the regime but have informers among expatriate oppositionist organisations who can name the people who are filmed or photographed. Similarly it does not require affirmative evidence to establish a probability that the intelligence services of such states monitor the internet for information about oppositionist groups. The real question in most cases will be what follows for the individual claimant. If, for example, any information reaching the embassy is likely to be that a claimant identified in a photograph is a hanger-on with no real commitment to the oppositionist cause, that will go directly to the issue flagged up by art 4(3)(d) of the [Qualification Directive 2004/83/EC].”
COMPLAINT
The applicant complained under Article 3 of the Convention that he would be at real risk of ill-treatment if he were returned to Libya.
THE LAW
Article 37 § 1 of the Convention provides:
‘‘1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires’’
The Court accepts that the applicant’s departure from the United Kingdom was entirely voluntary. The Court also recognises that new procedures have been implemented by the Government which ensure that, in such cases of voluntary departure, the Court will be informed where a Rule 39 is in place. Finally, the Court observes that neither the applicant nor his representatives have communicated with the Court since his departure and that, prior to his departure, the applicant did not provide any address outside the United Kingdom at which he could be contacted (see Sivanathan v. the United Kingdom (striking out) (dec.), no. 38108/07, 3 February 2009).
It therefore considers that, in these circumstances, the applicant may be regarded as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention.
Furthermore, though noting the apparent divergence in approaches taken by the Court of Appeal in SS (Iran) and YB (Eritrea) on sur place activities, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.
Accordingly, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyLech Garlicki
RegistrarPresident
Full & Egal Universal Law Academy