FOURTH SECTION

DECISION

Application no . 75184/11 S.U. against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 1 October 2013 as a Chamber composed of:

Ineta Ziemele, President, David Thór Björgvinsson, George Nicolaou, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Paul Mahoney, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 6 December 2011,

Having regard to the proposals submitted by the respondent Government and the comments in reply submitted by the applicant,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, S.U., is a Bangladeshi national, who was born in 1968 and lives in Sheffield. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 3). He was represented before the Court by Miss Amie Henshall of Bankfield Heath Solicitors, a solicitor practising in Sheffield. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ann Swampillai, of the Foreign and Commonwealth Office.

A. The circumstances of the case

2. The applicant has complained to the Court that his removal to Bangladesh would violate Article 3 of the Convention owing to the prison conditions in that country. He also complained under Articles 2, 5, 6 and Article 1 of Protocol No. 13.

3. By letter dated 24 April 2013 the applicant ’ s Article 3 complaint only was communicated to the Government who were invited to submit its observations before 26 June 2013.

4. On 25 June 2013 the Government wrote to the Court setting out their proposal to re-examine the applicant ’ s application for humanitarian protection. The Government accepted that a claim by the applicant based on prison conditions in Bangladesh and upon the content of its own Operational Guidance Note for Bangladesh of April 2012 would amount to a "fresh claim", attracting a new right of appeal if rejected. Furthermore, it recognised that this would be without prejudice to the ability of the applicant to lodge a new application to this Court (including a request for an interim measure under Rule 39 of the Rules of Court) should domestic re ‑ examination of his case be unfavourable.

5. By letter dated 26 June 2013 the Government ’ s proposal was sent to the applicant ’ s representative, who was requested to submit any comments in reply by 24 July 2013. This deadline was subsequently extended to 31 July 2013.

6. On 30 July 2013 the applicant ’ s representatives advised the Court that they did not accept the Government ’ s proposal. In particular they noted that the Government had not afforded any redress for its breach of Article 3; that it could not be certain that the Government would accept any new submissions made as constituting a fresh claim; that even if the Government accepted that the applicant ’ s new submissions constituted a fresh claim, there was no guarantee that he would be granted any form of protection; that any future appeal would be unlikely to depart from the previous court findings; and that the Government ’ s proposal constituted an unrealistic and inadequate remedy.

B. Relevant domestic law and practice

7. Paragraph 353 of the Immigration Rules which relates to the submission and consideration of fresh claims states as follows:

“ Fresh Claims

353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

This paragraph does not apply to claims made overseas.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise. ”

COMPLAINT

8. The applicant complained that after his conviction in absentia , he had been sentenced to fourteen years ’ imprisonment and that prison conditions in Bangladesh were likely to be in violation of Article 3 of the Convention.

THE LAW

9. Article 37 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.

2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

10. In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it] .” The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case ( Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006; M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008).

11. In the Court ’ s view, the particular circumstances of this application are such that it is no longer justified to continue their examination.

12. The applicant can now benefit from the undertaking of the Government set out in the letter of 25 June 2013. The practical effect of this undertaking is that he will not be returned to Bangladesh without a full examination of his fresh claim by the Government of the United Kingdom and, moreover, he will have the opportunity to lodge a new application with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise.

13. 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.

14. Accordingly, it is appropriate to strike the case out of the list without prejudice to the Court ’ s power under Rule 43 § 5 to restore cases to its list if it considers that exceptional circumstances so justify.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatos Aracı Ineta Ziemele Deputy Registrar President