19 February 2009

FOURTH SECTION
Application no. 23135/06
by M.H.I. 
against the United Kingdom
lodged on 9 June 2006

STATEMENT OF FACTS
THE FACTS
The applicant, M.H.I., is a Sudanese national who was born in 1969 and lives in Edinburgh. He is represented before the Court by Ms J. Moore of Drummond Miller LLP, a firm of solicitors practising in Edinburgh.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Sudanese national of Nuba ethnicity who entered the United Kingdom clandestinely on a ship from Port Sudan to Edinburgh, and claimed asylum on 12 October 1999. His claim was based on his fear of persecution due to his membership of the Sudanese Communist Party (SCP), which he had joined in 1988. He had been in charge of the Kosti branch of the party. He claimed that he was arrested in Kosti, around 150 miles south of the capital Khartoum, on 20 May 1999 while distributing leaflets, and taken to a “ghost house”, where he was detained for 60 days, interrogated and tortured. He was regularly beaten, and whipped each night. He was released on the condition that he reported weekly. The first time he went to report, he was badly beaten, and so decided to leave the country. He travelled first to Kadogli, around 300 miles south-west of Khartoum, where he spent 37 days hiding in the surrounding bush area before travelling to Port Sudan in the north-east by truck.
His asylum claim was refused on 26 August 2004. The Home Office accepted that the SCP was illegal in Sudan and subject to surveillance, and that its members faced problems. However, in the light of inconsistencies in the applicant’s account, it was not believed. The Home Office considered that the applicant was a low level member of the SCP, and would be of no further interest to the authorities. This was corroborated by the fact that he had been released for lack of evidence, and had managed to travel to Port Sudan, through numerous checkpoints, without being stopped. It was not believed that he had been subjected to reporting restrictions upon release. It was also thought that if the applicant were a genuine supporter of the SCP, he would be involved with its branch in London.
The applicant’s appeal was dismissed by an Adjudicator on 30 December 2004. His account was disbelieved for various reasons: the applicant had stated that he was released because of lack of evidence, but “the Sudanese authorities do not require evidence,” and moreover had caught him red-handed; he had stated that the SCP seeks democratic government, but this was not a well-known tenet of communism; he did not know when the SCP had been formed; and he had claimed that his wife had died in childbirth as a result of ill-treatment by the authorities, but had also stated to a doctor who examined him that he had not heard from his wife in over five years, which implied she was still alive. The medical report produced by this doctor, which stated that the applicant had scars on his back that were “pathognomonic” (meaning undoubtedly caused in the manner described) of being whipped, was accepted. However, it was noted that, according to the applicant, the alleged whipping in custody had left no scars. Thus it was not believed that the scars attested to by the medical report had been produced in the way the applicant claimed. The medical report also noted that the applicant had psychological problems, and photophobia, which was highly typical of someone who had been detained for long periods in the dark. However, the Adjudicator considered that the doctor had not considered other possible causes of the applicant’s photophobia, and that a degree of mental upset was to be expected in a person seeking asylum in an unfamiliar country. Other evidence put before the Adjudicator included a report by Mr Peter Verney, an acknowledged country expert on Sudan, in which he stated that,
 “[the applicant’s] statements are detailed and consistent with the known facts about the situation prevailing in Sudan in recent years, and I do not see anything in them that is necessarily exaggerated or impossible. On the contrary, they contain numerous incidents and details which are both characteristic of the regime and of the known circumstances in Sudan.”
An application for reconsideration of the Adjudicator’s decision was refused by a Senior Immigration Judge on 15 July 2005. The judge was found that the Adjudicator had been entitled to consider that the applicant had been inconsistent with regard to his scars, and that he had carried out a full and fair assessment of the evidence. Credibility was the main issue and the Adjudicator had come to a clear conclusion on that matter which was fully open to him given the applicant’s evidence.
On 11 January 2006 the Court of Session refused the applicant’s petition for reconsideration. It was noted that, had the applicant been whipped hard enough to leave scars, it would be “inconceivable” that he would not know that they were there. There was further lack of consistency as to his claims about his wife. The Adjudicator had had good grounds for rejecting the applicant’s evidence.

B.  Relevant domestic law
In HGMO (Relocation to Khartoum) Sudan CG [2006] UKAIT 00062, promulgated on 3 August 2006, the Asylum and Immigration Tribunal found, inter alia, that failed asylum seekers are not generally at risk upon return to Sudan; however, limited categories of persons will face a real risk of persecution on return, namely those whose conduct has marked them out as oppositionists or anti-Government activists.
On 16 May 2008, the AIT decided another country guidance case on Sudan, AY (Political Parties – SCP – Risk) Sudan CG [2008] UKAIT 00050, which dealt with the potential risk on return of a member of the Sudanese Communist Party. The AIT found that ordinary members of a political party in Sudan will not generally be able to establish a claim for asylum. To do so, they would need to show involvement in specific activities likely to attract adverse attention from the Government. The Tribunal specifically commented on the relevance of a past history of distributing leaflets, finding that,
“a distinction could properly be drawn between people who merely distributed pamphlets, who may not be of interest to the authorities, and situations where the distribution of pamphlets might indicate a real political commitment to opposition activities, which would give the authorities cause for concern.”
The Tribunal also found that it was not necessarily high profile political leaders who were most at risk, since the authorities might leave such figures alone in order to give a semblance of permitting opposition activity. Rather, those “actively engaged in building up grass roots democracy, working in support of human rights and involved in open criticism of the regime’s core ideology and philosophy” were the most likely to be targeted for repression by the regime.
The AIT in AY relied upon expert evidence on the status and treatment of political parties in Sudan from Mr Peter Verney, who produced the above‑mentioned report in support of the present applicant, and also gave evidence in HGMO.
COMPLAINT
The applicant complains that his removal to Sudan would violate Article 3 of the Convention.
QUESTION TO THE PARTIES

Would the applicant’s removal to Sudan violate his rights under Article 3 of the Convention? In particular, the Government are requested to comment on the applicant’s case in the light of the determination of the Asylum and Immigration Tribunal in AY (Political Parties – SCP – Risk) Sudan CG [2008] UKAIT 00050.