THIRD SECTION
DECISION
Application no. 12708/16
W.M.
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 1 March 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr W.M., is a Sudanese national, who was born in 1972 and lives in the Netherlands. He was represented before the Court by Ms A. Szirmai, a lawyer practising in Heerenveen. 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 9 January 2015 the applicant arrived in the Netherlands where he applied for asylum. In his interviews with the immigration authorities – held on 11 January 2015, 18 February 2015 and 20 February 2015 – he stated that he had travelled by air from Khartoum –via Qatar and Athens – to Paris from where he had travelled by train to the Netherlands. When he entered the Netherlands, the applicant was travelling on his own Sudanese passport, issued 19 November 2014 and valid until 18 November 2019, containing a Greek Schengen visa valid from 25 December 2014 until 2 January 2015.
4. He further stated that he hailed from Khartoum North, that he was married and that his wife and their children as well as his parents had stayed behind in Sudan and that they lived together in one house. He had worked for an airline as a security agent, both at the airport as well as on flights when transporting valuables (cash, airline tickets etc.). By the end of 2012 he had been approached by the Sudanese National Intelligence and Security Service (“the NISS”) and – without a previous security scan – requested to allow boxes to be taken on board flights. After having allowed this to happen about four times, he eventually refused to cooperate. This resulted in him being held for approximately three hours at the airport and threatened by NISS agents. The applicant’s employer subsequently allowed him to work at the airline’s head office and not at the airport. After a while the applicant had started to work on flights to South Sudan. One day, in mid-January 2013, when accompanying mail to South Sudan, NISS agents checked the mail the applicant was transporting. After about half an hour, the mail was returned to the applicant who then continued his journey. Some weeks later, in February 2013, he was to transport an amount of nearly 30,000 United States dollars (USD) from the airline’s director in Khartoum to the director of the airline’s branch office in Cairo. This money was destined for aeroplane maintenance. When awaiting boarding, the applicant was arrested by the NISS. The money was seized and his two work ID’s were taken from him. He was questioned on the suspicion of having contacts with the Sudan People’s Liberation Movement – North (“SPLM–N”), an illegal opposition organisation. He had been ill-treated during questioning and was released in July 2013 but had to report daily to the NISS. He was fired from his work in August 2013. As from March 2014 he refused to report daily to the NISS and had gone into hiding with in-laws. With the aid of the neighbourhood Committee, the NISS raided his home several times. His father advised him to leave the country which, with the aid of a cousin, he had done. A travel agent had arranged a passport and a visa for him.
5. On 22 February 2015 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) notified the applicant of his intention (voornemen) to reject the asylum application. On 24 February 2015 the applicant’s lawyer submitted written comments (zienswijze) on the Deputy Minister’s intended decision.
6. By a decision of 24 February 2015 the Deputy Minister rejected the asylum application. Noting that the applicant’s passport had been examined and found authentic by the Netherlands Royal Constabulary (Koninklijke Marechaussee), the Deputy Minister accepted the applicant’s stated identity, nationality and origin. Further noting the applicant’s detailed statements about his arrest and detention, the Deputy Minister also accepted the applicant’s asylum statement on those points. However, the Deputy Minister did not find that the applicant had demonstrated that he, if returned to Sudan, would risk being arrested again. The Deputy Minister did not find it established that the applicant would have been obliged to report daily to the authorities after his release, that he had failed to comply with previously and that, for this reason, he had gone into hiding. On these points the Deputy Minister took note of the applicant’s summary statements about this obligation to report and found it odd that the applicant had gone into hiding with close relatives living in the same town without having encountered any problems whilst during this period his own house would have been raided three or four times by the authorities. It was further taken into account that the applicant had left Sudan legally. It seemed strange that, for a person who claims to be searched for by the authorities, it would be possible to apply to these same authorities for a passport and to pass passport control at the airport without being apprehended. On this point, the Deputy Minister noted that it appeared from the general country assessment report (algemeen ambtsbericht) on Sudan of 22 August 2013 that control at Khartoum airport is effective and that the names of all who wish to leave Sudan by airplane are recorded on a list by the airline companies concerned and that these lists are provided to and checked by the NISS.
7. By a judgment of 13 March 2015, the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, sitting in Groningen, accepted the applicant’s appeal, quashed the decision of 24 February 2015 and ordered the Deputy Minister to take a fresh decision on the applicant’s asylum application. The judge noted several descriptions contained in inter alia paragraph 41 of the official country report on Sudan of 22 August 2013 about the manner in which Sudanese nationals who return to Sudan are checked upon arrival and that rejected asylum-seekers may run into trouble if the Sudanese authorities are aware of their asylum application. In that light, the judge held that the premise used by the Deputy Minister, i.e. that for more than a year after having been released the applicant had not been arrested and detained and had been able to leave the country in December 2014, was insufficient for holding that, upon his arrival in Sudan, the applicant would pass through screening at the airport unhindered.
8. On 19 March 2015 the Deputy Minister filed a further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). The applicant filed a cross-appeal (incidenteel hoger beroep) on 27 March 2015.
9. On 2 September 2015 the Administrative Jurisdiction Division rejected the applicant’s cross-appeal. 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.
10. It accepted the further appeal filed by the Deputy Minister, quashed the impugned judgment and rejected the applicant’s appeal against the decision of 24 February 2015. As to the further appeal of the Deputy Minister, it held as follows:
“4. The Deputy Minister argues that the Regional Court has unjustly considered that the circumstances in which the [applicant] has remained in Sudan for more than a year after his release without have been arrested and detained anew and that he has legally left to Sudan are not sufficient to find that, upon return, he will pass the screening at the airport unharmed. According to the Deputy Minister, the Regional Court has thus failed to appreciate he has justly taken the position that there are good reasons for assuming that the [applicant] will not be detained and tortured anew.
4.1. The Deputy Minister has considered credible that the [applicant] has been arrested and held in detention on ... February 2013 by the [NISS], that he has been tortured by the [NISS] during his detention and that he has been released again on or around ... July 2013. It follows from section 3.35 § 2 of the Aliens Act 2000 that the circumstance that the alien has already in the past been exposed to detention and torture is a clear indication that the risk of being subjected to this is realistic, unless there are good reasons for assuming that this will not happen again.
4.2. The Deputy Minister has based his opinion that there are good reasons for assuming that the [applicant], if returned to Sudan, will not be detained and tortured again on [the circumstance] that, after [the applicant’s] release on ... July 2013 until his departure from Sudan in December 2014, he has not encountered any problems from the side of the Sudanese intelligence and security service. As follows from [the rejection of the applicant’s cross-appeal], this is now legally established. The [applicant] has further stated that, by the end of November or early December 2014, he applied for a passport with the Sudanese authorities in the context of which he had to present his identity card, place a signature, and had his picture and fingerprints taken. Contrary to what the Regional Court has considered, the Deputy Minister has – in the assessment of the risk the {applicant] will run when returned to his country of origin – justly attributed significance to the circumstance that, and the manner in which, the Sudanese authorities have provided a valid Sudanese passport to the [applicant]. The Deputy Minister has further correctly found of relevance that, with this passport, the [applicant] has left [Sudan] in a legal manner via the airport of Khartoum and that, noting what is written in the general official country report of the Minister of Foreign Affairs on Sudan of 22 August 2013 (hereafter: the official report) about security on that airport, the Sudanese intelligence and security service must have been aware of the [applicant’s] legal departure which – as follows from [the rejection of the applicant’s cross-appeal] – is also legally established.
4.3. In view of the above, the Deputy Minister has rightly taken the view that, in the [applicant’s] case, there are good reasons to assume that he, upon return to Sudan, will not be detained and tortured again. This is not altered by the official report stating that the Sudanese intelligence and security service continues to monitor suspects after release, that Sudanese returning from abroad via Khartoum airport must complete a registration form and that it occurs that the Sudanese intelligence and security services questions them about their stay abroad. By considering that the reasoning given by the Deputy Minister is – noting what is stated in the official report – not sufficient for finding that the applicant will pass the airport screening unharmed, the Regional Court has failed to acknowledge this. Therefore the Regional Court has unjustly found cause in what has been stated in the official report to find that the decision is eligible for quashing.
The grievance succeeds.”
No further appeal lies against this ruling.
B. Relevant domestic law and practice
11. 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 otherwise indicated in this Act.
12. 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
13. 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
14. The official 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:
“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.”
15. On 20 November 2017 the Deputy Secretary 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. ...
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. ...
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.”
16. 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.
C. Relevant international materials
17. 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:
“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 risks are likely to be those from the Darfuri African tribes of Fur, Masalit and Zaghawa, and persons from the Nuba Mountains.”
18. 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.
19. The United Kingdom Home Office Country Policy and Information Note “Sudan: Non-Arab Darfuris”, released in August 2017, states inter alia as follows:
“3.1.6 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.’ ...”
COMPLAINT
20. The applicant complains that 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
21. 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
22. 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, § 23378/15, §§ 48-49 with further references, 30 May 2017).
B. Application of the general principles to the present case
23. 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.
24. Since the applicant in the instant has not already been removed, 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 full and ex nunc evaluation is required 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).
25. In examining this matter, 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.
26. The Court has noted the reasons why the Deputy Minister and the Administrative Jurisdiction Division reached the conclusion that it had not been established that the applicant would risk being arrested and tortured anew in Sudan (see paragraphs 6-10 above). The Court has found no reason to doubt this conclusion. There is no concrete indication in the applicant’s submissions indicating a negative interest in the applicant on the part of the authorities of Sudan, either at the time he left Sudan or currently. On this point the Court notes, bearing in mind that the applicant’s parents, spouse and children have remained in Sudan, that it has not been argued, and it does not appear, that the Sundanese authorities have ever taken any concrete steps aimed at finding out the applicant’s whereabouts after he applied for a passport and left the country.
27. The Court further 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.
28. 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.
29. 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
Full & Egal Universal Law Academy