Information Note on the Court’s case-law 16

March 2000

T.I. v. the United Kingdom (dec.) - 43844/98

Decision 7.3.2000 [Section III]

Article 3

Expulsion

Return of asylum-seeker to the country where he was originally refused asylum: inadmissible

The applicant, a Sri Lankan national, lived in an area of Sri Lanka controlled by the LTTE, a Tamil terrorist organisation engaged in armed struggle for independenc e. He claimed that he had been held prisoner by the LTTE for several months before managing to escape. He left the area for Colombo, where he was arrested and detained on several occasions by the Sri Lankan authorities on suspicion of being a member of the LTTE. He maintained that he was repeatedly tortured and ill-treated while in detention. He eventually fled to Germany, where he applied for asylum. The Federal Office for the Recognition of Foreign Refugees refused him asylum, without making any findings as regards his allegations of torture, considering, in line with the German approach to State responsibility, that neither the LTTE’s actions nor the “excesses of isolated executive organs” could be regarded as political persecution attributable to the Sta te. The applicant’s subsequent appeal was rejected, the Administrative Court concluding that his account was a “tissue of lies” and that there was no obstacle to his deportation. He then travelled to the United Kingdom, where he also claimed asylum. Follow ing the request of the UK authorities, the German authorities agreed to take responsibility for the applicant’s asylum request, pursuant to the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum cl aims. The UK authorities directed the applicant’s removal to Germany and refused to examine the substance of his complaint. His attempts to have this decision reviewed remained unsuccessful. The UK authorities were satisfied that Germany was a safe third c ountry and accordingly issued removal directions. A medical report established at this stage that the scars on the applicant’s body were fully consistent with his account of torture. His second application for judicial review, in the light of this medical report, was to no avail. A further medical report later confirmed the findings of the first one.

Inadmissible under Article 3: The indirect removal to an intermediary country which is also a Contracting State did not affect the responsibility of the United Kingdom to ensure that the applicant was not, as a result of its decision to expel, exposed to treatment contrary to this provision, nor could the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention. Where S tates establish international organisations, or mutatis mutandis international agreements, to pursue cooperation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution.

The material presented by the applicant, notably the medical reports a nd reports concerning Sri Lanka by Amnesty International, the United Nations Special Rapporteur and the United States Department of State, gave rise to concerns as to the risks that he might face should he be returned to Sri Lanka, in spite of the rulings of the German Federal Office and Administrative Court to which the UK authorities referred.

As to the position of the applicant as an asylum-seeker if returned to Germany, it appeared that he would be able to make a fresh claim for asylum as well as claims for protection under the Aliens Act. The German authorities assured that he would not risk immediate or summary removal to Sri Lanka. The previous deportation order having been made more than two years earlier, he could not be removed without a fresh depo rtation order being made, and this would be subject to review by the Administrative Court. Moreover, the applicant could make an application for interim protection within one week and he would not be removed until the court had ruled upon his application. The apparent gap in protection resulting from the German approach to non-State agent risk is met, at least to a certain extent, by the application by the German authorities of section 53(6) of the Aliens Act, which has been applied to give protection to pe rsons facing risk to life and limb from non-State agents. Although this provision is phrased in discretionary terms, there is an obligation for the authorities to apply its protection to persons who have shown that they were in danger. Moreover, the Federa l Administrative Court considers that cases involving a serious risk to life and personal integrity should be re-examined. The applicant’s contention that the re-examination of his application could only be rejected was largely a matter of speculation and conjecture. As to the alleged high burden of proof placed on asylum-seekers in Germany, the record of Germany in granting large numbers of asylum claims gave an indication that the threshold being applied in practice was not too high. Therefore, it was not established that there was a real risk that Germany would expel the applicant to Sri Lanka in breach of Article 3, and consequently the United Kingdom had not failed in its obligations under this provision by taking the decision to remove the applicant to Germany. Nor had it been shown that this decision was taken without regard to the existence of adequate safeguards in Germany to avoid the risk of any inhuman or degrading treatment: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes