Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32884/96

by Ouma OUATTARA

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 March 1998, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 June 1996 by

Ouma OUATTARA against the United Kingdom and registered on

5 September 1996 under file No. 32884/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

20 November 1996 and further observations submitted on

19 June 1997 and the observations in reply submitted by the

applicant on 4 April 1997 and 17 September 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Côte d'Ivoire, born in 1969 and

currently resident in the United Kingdom. He is represented before the

Commission by Jane Coker and Partners, solicitors practising in London.

The facts of the case, as submitted by the parties, may be summarised

as follows.

The applicant arrived in the United Kingdom on 29 October 1993,

travelling on a passport which he later declared to be the passport of

his brother, El Hadj Darude Ouattara. The applicant, under the name

of El Hadj Darude Ouattara was granted permission to enter and remain

in the United Kingdom for six months as a visitor, with a condition

prohibiting him from taking employment, paid or unpaid.

On 1 November 1993 the applicant claimed asylum by personally

presenting himself at the Home Office. He submitted a self-completion

asylum application dated 8 December 1993, which detailed the factual

basis for his claim to asylum. He claimed that he had been elected as

the public relations officer for the Abidjan branch of the "Front

Populaire Ivoirien" ("FPI"), an opposition political party, and that

he had been responsible for distributing newsletters and magazines and

newspapers critical of the government, in particular the newspapers "La

Voie" and "La Patrie". He stated that on 7 August 1993 he had been

arrested by security agents of the government, known as Loubards. He

described being detained for one week during which time he was

assaulted and stated that he was released on 14 August 1993, after

having been forced to sign a declaration that he would resign from the

FPI and refrain from dissident activities against the authorities and

the President. The applicant states that after his release he was kept

under surveillance, frequently stopped and interrogated, and that his

friends and relatives were also subject to surveillance. The applicant

describes going into hiding in a village from where his mother obtained

a passport for him from an agent, which the applicant subsequently used

to travel to England, entering the country on 29 October 1993 via

Belgium.

In order to obtain more detailed information about his claim, the

applicant was interviewed by the Home Office (Asylum Division) on

31 March 1994. The applicant stated on this occasion that after his

release in August 1993 he went into hiding in his mother's village, he

then travelled to Togo by bus. He stated that he remained in Togo for

what he thought was about one year. From Togo he went to Benin and

from Benin to Belgium by cargo boat. In Belgium he was given a lift

by a German motorist to England. When challenged with the discrepancy

of dates the applicant was unable to give clarifying details. At this

interview the applicant revealed his true name and admitted that the

passport on which he had been travelling bore his brother's name and

details.

The Secretary of State for the Home Department considered the

applicant's asylum claim, but rejected it in a letter dated

30 June 1994. The letter set out the reasons for rejection as follows:

(1) Political activity by recognised opposition groups, for

example the FPI was tolerated in the Ivory Coast. The FPI

had participated in the 1990 parliamentary elections and

won a number of seats. Indeed, the FPI leader had won a

seat. The Secretary of State considered, therefore, that

it would be unlikely that activity with such a group would

lead to harassment or persecution.

(2) On 30 July 1992 an amnesty for political opponents was

announced and still remained in force. The applicant would

be able to benefit.

(3) According to the passport with which the applicant arrived

in the United Kingdom, he entered Togo on 9 March 1993 by

air through Lomé airport (not by land in late August as

claimed) and returned to the Ivory Coast on 15 March 1993.

He had then left the Ivory Coast by air on

17 September 1993 (not in late August 1993 by land to Togo

and then by boat from Benin as claimed) using proper

immigration channels at Abidjan airport. These

discrepancies led the Secretary of State to doubt the

applicant's credibility.

(4) The applicant's credibility was also seriously damaged

because he had failed to admit his true identity when

claiming asylum, revealing it only at an interview almost

five months later.

On 27 August 1994 the applicant was arrested for fare evasion and

interviewed by an immigration officer. Due to the fact that the

applicant had used a false passport to gain entry to the United

Kingdom, he was declared an illegal entrant on the same date and

directions were given under the Immigration Act 1971 ("the 1971 Act")

for his removal from the United Kingdom. The applicant was released

on bail.

On 21 October 1994 the applicant appealed against the decision

refusing his asylum claim. His appeal on the merits was heard by a

Special Adjudicator on 20 February 1996. The applicant himself gave

oral evidence at this hearing and he was represented by the Refugee

Legal Centre. At this appeal the applicant produced a report by

Amnesty International, dated 13 July 1994 and a medical report dated

15 November 1995. The medical report details the findings of a medical

examination of the applicant, carried out on 15 November 1995 by

Dr Peel of the Medical Foundation for the Care of Victims of Torture.

The summary of this medical report states as follows:

"[The applicant] is a 26 year old Ivorean, who gives a

story of having been arrested with some friends while

selling political newspapers. During his arrest his

clavicle was fractured and he was stabbed in two places.

Once arrested he was kept in insanitary conditions and

developed skin infections. He received no medical

treatment, and was fed poorly. He was interrogated daily,

but not beaten and was released after a week. He then fled

to his village, but was not safe there, so after a few days

he left the country. Mr Ouattara describes some

psychological symptoms that are typical of those who have

suffered such treatment. He also has scars on his body,

which are very unlikely to have been caused in any other

way than that he describes."

On 13 March 1996 the Special Adjudicator dismissed the

applicant's appeal. In his "Determination and Reasons" the Special

Adjudicator stated:

"The appellant bases his claim for asylum on the fact that

he is a member of the FPI and has been persecuted for his

political opinions culminating in him being detained and

tortured in August 1993. However, I have not found the

appellant to be a credible witness in that there are

substantial parts of his evidence which I do not accept.

His credibility is undermined by the confusion in his

evidence as to the chronology of events and, in particular

as to the obtaining of his passport.

...

It is clear that the appellant has been the victim of

serious ill-treatment. I have to consider whether there is

a reasonable degree of likelihood that these injuries were

incurred as a result of persecution...

...

I have not found the appellant's evidence to be credible

and I do not believe the account he has given of the

circumstances of his arrest. I do not believe that he has

been a political activist on behalf of the FPI nor that he

was arrested for the reason that he describes or at the

time he describes. However it is clear that the appellant

has been the victim of serious ill-treatment.

...

Although I accept that the appellant has been the victim of

ill-treatment in Ivory Coast, and in all likelihood for

this reason has decided to leave the country, I do not find

there is any serious possibility that he has been

persecuted for a Convention [1951 UN Refugee Convention]

reason or that he is at risk of such persecution were he to

return.

This appeal must be dismissed but doubtless the Secretary

of State will take careful note of the contents of the

report from the Medical Foundation before deciding what

further action will be appropriate."

By an application for leave to appeal dated 29 March 1996, the

applicant applied to the Immigration Appeal Tribunal for leave to

appeal against the dismissal of his asylum appeal by the Special

Adjudicator. By a determination dated 3 April 1996, the Immigration

Appeal Tribunal refused to grant leave to appeal. The applicant had

no further right of appeal. He was arrested and detained under the

1971 Act on 5 May 1996. Removal directions for the return of the

applicant to Côte d'Ivoire were originally set for 6 May 1996. They

were deferred, initially to give the applicant time to consider

judicial review proceedings and subsequently pending the outcome of the

present application.

On 8 May 1996 counsel advised in writing that there was no

arguable basis for a challenge to the determination of 3 April 1996,

because the Special Adjudicator had considered all the evidence and had

lawfully and rationally concluded that there was no evidence to suggest

there was any serious possibility that the applicant had been

persecuted for a Convention reason or that he would be at risk of such

persecution were he to be returned.

The applicant's representatives wrote to the Home Office on

8 May 1996, confirming that no application for judicial review would

be made. This letter, however, requested that the applicant be granted

exceptional leave to remain in the United Kingdom outside the

Immigration Rules because of the Special Adjudicator's acceptance that

the Applicant had sustained injuries amounting to serious ill-treatment

in Côte d'Ivoire.

According to an Amnesty International Report dated 28 May 1996,

subsequent to the one submitted by the applicant to the Special

Adjudicator, dozens of people were arrested in October 1995 as FPI

sympathisers. The report also details an increase in the number of

convictions of journalists and cites examples of journalists working

on "La Voie" being singled out for judicial harassment by the Ivorean

authorities, and imprisonment of journalists working for "La Patrie".

By a letter dated 17 July 1996 the Home Office replied to the

applicant's letter of 8 May that:

"Based on the totality of evidence he [the Secretary of State]

does not ... consider that there is any evidence to suggest that

[the applicant] would face persecution for a Convention [1951 UN

Refugee Convention] reason, were he returned to the Côte

d'Ivoire."

The Secretary of State added that when the applicant had been

arrested for fare evasion on 27 August 1994, he had admitted to an

Immigration Officer that he had not come to the United Kingdom

specifically to claim asylum.

This decision was confirmed in a letter of 25 July 1996, sent in

response to further letters from the applicant's representatives.

The applicant, who had been in custody awaiting removal, was

released from detention on 17 September 1996.

COMPLAINTS

The applicant complains under Articles 2 and 3 of the Convention

about his proposed removal from the United Kingdom. The applicant

further complains under Article 13 of the Convention that he had no

effective remedy as the English courts had no jurisdiction to establish

the existence of a risk of torture in a receiving state.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 June 1996 and registered on

5 September 1996.

On 7 September 1996 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

28 November 1996 and further observations on 19 June 1997, after an

extension of the time-limit fixed for that purpose. The applicant

replied on 4 April 1997 and further on 17 September 1997, also after

an extension of the time-limit.

On 7 March 1997 the Commission granted the applicant legal aid.

THE LAW

1. The applicant complains that his removal from the United Kingdom

to Côte d'Ivoire would constitute a violation of Articles 2 and 3

(Art. 2, 3) of the Convention. The Commission finds that the

applicant's complaints should be considered under Article 3 (Art. 3)

of the Convention.

Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or degrading

treatment or punishment."

The Government argue that the applicant has failed to exhaust his

domestic remedies. Judicial review proceedings were not pursued to

challenge the decision of the Immigration Appeal Tribunal's refusal of

leave to appeal, and no application was made for judicial review of the

refusal of the Secretary of State to accede to a request for

exceptional leave to remain in the United Kingdom. With regard to the

failure to challenge the refusal of leave to appeal by the Immigration

Appeal Tribunal, the Government accept that counsel had advised that

there was no arguable basis for such a challenge, but state that such

advice did not absolve the applicant from his duty to pursue such a

remedy. With regard to the Home Secretary's refusal to grant

exceptional leave to remain, the Government state that this decision

could have been judicially reviewed and they cite an example of a case

(R v. Secretary of State for Home Department ex parte Danaei) where the

Home Secretary's refusal to grant exceptional leave was challenged and

subsequently quashed. The Government rely upon the case of M v. United

Kingdom (No. 12268/86, Dec. 7.11.88, D.R. 57 p. 136).

The applicant submits that domestic remedies have been exhausted.

In relation to the failure to apply for judicial review of the refusal

of the Immigration Appeal Tribunal to grant leave to appeal, the

applicant states that counsel's opinion that there were no grounds for

judicial review was unequivocal and amounted to a settled legal

opinion. The opinion stated that the Special Adjudicator had made a

lawful decision based on views rationally open to him and that there

were thus no grounds for judicial review. The applicant argues that

judicial review was doomed to fail and thus there was no effective

remedy open to him. With regard to the failure to apply for judicial

review of the refusal of the Secretary of State to grant exceptional

leave, the applicant contends that judicial review was not an effective

remedy. The applicant states that there is no body of case law where

such challenges have been effective and that the case quoted by the

Government is an isolated case, which in any event differs from the

applicant's case on the facts; in the cited case the Home Secretary's

refusal of exceptional leave was quashed because, despite the absence

of additional evidence, the Home Secretary had relied on facts in

relation to the asylum seeker that differed from those found by the

Special Adjudicator. The applicant distinguishes the case of

M v. United Kingdom (No. 12268/86, Dec. 7.11.88, D.R. 57 p. 136), as

in that case the applicant, an asylum seeker who was found not to have

exhausted his domestic remedies, had not challenged three refusals of

asylum and one of exceptional leave and had submitted no evidence to

suggest that judicial review would be ineffective.

The Commission recalls that, in accordance with Article 26

(Art. 26) of the Convention, it may only deal with a matter after all

domestic remedies have been exhausted. Article 26 (Art. 26) requires

exhaustion of remedies which relate to the breach alleged and which are

available and sufficient (see Eur. Court HR, Van Oosterwijck judgment

of 6 November 1986, Series A no. 40, p. 13, para. 27). In addition the

Commission has consistently held that the mere existence of doubts as

to the prospects of success does not absolve an applicant from

exhausting a given remedy (see Nos. 5577-5583/72, Dec. 15.12.75, D.R.

4 pp. 4, 72).

The Commission recalls that in the cases of Vilvarajah and Others

v. United Kingdom (Eur. Court HR, judgment of 30 October 1991, Series

A no. 215), the Court held that judicial review was an effective remedy

which provides a control of decisions of the administrative authorities

in asylum cases. However, it is recognised in the Vilvarajah case that

there are limitations to the powers of the courts in judicial review

proceedings. In the current case counsel was of the view that the

Special Adjudicator's finding could not be considered either unlawful

on technical or procedural grounds or irrational. As regards the

failure to apply for judicial review of the Secretary of State's

refusal to allow the applicant permission to stay in the country, the

Commission notes that the applicant has not submitted any

contemporaneous advice from counsel which concluded that such an

application was bound to fail. On the other hand, the request for

permission to remain was a request for an exercise of discretion on the

part of the Secretary of State, and may therefore be assimilable to an

extraordinary remedy which the applicant was in any event not required

to exhaust.

In the circumstances of the present case, the Commission is not

required to determine whether the applicant has complied with the

requirements of Article 26 (Art. 26) of the Convention as the

application is in any event inadmissible for the following reasons.

The Government argue that the applicant has failed to show

substantial grounds that there is real risk that he will be subjected

to torture or inhuman or degrading treatment or punishment, were he to

return to Côte d'Ivoire. They do not accept that the applicant has

ever been a FPI supporter and contend that the reports published by

Amnesty International, in particular the report dated 28 May 1996

concerning the situation in Côte d'Ivoire, give a misleading,

inaccurate and outdated account of the true situation. The Government

have placed before the Commission UNHCR Country Information dated

3 February 1997 which is based on information from the US Department

of State Office of Asylum Affairs and Country Conditions 1995/96. This

report details an improvement of the situation in Côte d'Ivoire, noting

the Government's apparent acceptance of the presence of the opposition

and commenting that:

"In our view, affiliation with the FPI ... would not by itself

expose a person to danger upon returning to Côte d'Ivoire."

The applicant states that the Special Adjudicator accepted that

he had been the victim of serious ill-treatment and that such past

treatment of itself raises substantial grounds for believing there to

be a real risk of similar treatment upon return.

The Commission recalls that in the case of Soering v. United

Kingdom (Eur. Court HR, judgment of 7 July 1989, Series A no. 161,

p. 35, para. 91), the Court held that for there to be an issue under

Article 3 (Art. 3) of the Convention, there must be substantial grounds

for believing that the person concerned faces a real risk of being

subjected to torture or to inhuman or degrading treatment or

punishment. In deciding whether there are substantial grounds for such

a belief, the Commission will consider all the material before it (see

the above mentioned Vilvarajah judgment at p. 36, para. 107). In the

present case the Commission has considered and accepted the report of

Amnesty International dated 28 May 1996 as an accurate summary of the

situation in Côte d'Ivoire at the date of that report, but considers

that such report must now be read in the light of the more recent UNHCR

report of 3 February 1997. The Commission notes the medical report

concerning the applicant's injuries and the finding of the Special

Adjudicator, following the view of the medical doctor, that the

applicant had been the victim of serious ill-treatment.

However, the Commission considers that there is no sufficient

evidence before it to substantiate the applicant's involvement with the

FPI or to establish that any detention was due to his political

activities. In the absence of such evidence the Commission does not

consider that the applicant has shown there to be substantial grounds

for believing that were he to return to Côte d'Ivoire he would face a

real risk of being subjected to torture, inhuman or degrading treatment

or punishment, whether on political or other grounds. The fact that

the applicant's injuries indicate he had received ill-treatment in the

past is insufficient to ground a finding of a potential breach under

Article 3 (Art. 3) of the Convention, in the absence of evidence of a

real risk to him if returned now.

In these circumstances the Commission finds that substantial

grounds have not been established for believing that the applicant

would be exposed to a real risk of being subjected to inhuman or

degrading treatment, within the meaning of Article 3 (Art. 3) of the

Convention, were he to return to Côte d'Ivoire.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant complains under Article 13 (Art. 13) of the

Convention that he had no effective remedy.

The Commission recalls that the guarantees of Article 13

(Art. 13) apply only to a grievance which can be regarded as "arguable"

(cf. Eur. Court HR, Powell and Rayner v. United Kingdom judgment of 21

February 1990, Series A no. 172, p. 14, para. 31). In the present

case, the Commission has rejected the substantive claims as disclosing

no appearance of a violation of the Convention. For similar reasons,

they cannot be regarded as "arguable".

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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OUATTARA v. THE UNITED KINGDOM

OUATTARA v. THE UNITED KINGDOM