FOURTH SECTION

Application no. 75184/11 S.U. against the United Kingdom lodged on 6 December 2011

STATEMENT OF FACTS

The applicant , S . U. , is a Bangladeshi national , who was born in 1968 and lives in Sheffield .

A. The circumstances of the case

The facts of the case , as submitted by the applicant , may be summarised as follows.

The applicant , a Buddhist monk from Sonaichori , left Bangladesh on 15 August 2005 and arrived in the United Kingdom on the same day. Whilst in the United Kingdom on 13 September 2005 , the applicant travelled to Norway , before returning to the United Kingdom on 30 October 2005. He claimed asylum in the United Kingdom on 9 February 2010. He stated that he had been wrongly implicated in the murder of a man in October 2004 in Bangladesh . The applicant ’ s devotees had protested to the police not to arrest him and the applicant had been instructed to surrender himself to the local police station. The applicant did not attend the police station and instead fled to Dhaka . He stated that two court hearings had taken place on 23 February 2005 and on 22 March 2005. Despite being in Bangladesh at the relevant time , he had not attended either hearing; however , he had instructed a lawyer who had kept him informed of the proceedings. The applicant stated that his lawyer had informed him that the case was not going in his favour and that he should travel abroad to seek safety. Finally , the applicant claimed that , on 18 July 2007 , he had been informed that he had been convicted in absentia for the 2004 murder and had been sentenced to 14 years ’ imprisonment. He maintained his innocence of the murder.

The Secretary of State rejected the applicant ’ s asylum claim on 11 March 2010. In the Secretary of State ’ s view , the applicant ’ s credibility had been damaged owing to his delay in claiming asylum , by his failure to claim asylum in Norway and by his inability to name the other persons accused of murder. Furthermore , the applicant had been found to have been inconsistent regarding , inter alia , the date on which he had been spoken to by the Bangladeshi police , the murder victim ’ s name , the period of time he had spent in Dhaka , and his travel history. It was also held to be incredible that the police would not have arrested the applicant immediately simply on the basis of protests by his devotees. The Secretary of State did not accept that the applicant was being sought by the Bangladeshi authorities for murder given the adverse credibility findings which she had made against him and the fact that he had been able to leave Bangladesh using his own passport.

The applicant appealed against the Secretary of State ’ s decision to the First-tier Tribunal ( Immigration and Asylum Chamber ). The Tribunal dismissed the applicant ’ s appeal on 16 May 2010. It was accepted by the Tribunal that the applicant was a Buddhist monk who had run a monastery in his home area. The Tribunal accepted that the applicant had been convicted in absentia but found that it would be open to him to challenge the findings of the court by way of appeal upon his return to Bangladesh . Additionally , the Tribunal held that the applicant had been convicted by a court in Bangladesh having heard the testimony of witnesses and having been convinced of his guilt. It was further noted that it was by virtue of the applicant ’ s own actions in failing to attend the trial that led the court to convict him in his absence and that there was nothing to suggest that the trial conducted was not fair. The Tribunal held that the sentence passed was the result of a prosecution seeking to uphold law and order and not of any form of ill-treatment directed at the applicant.

However , the Tribunal also held that the applicant was clearly not being pursued by the Bangladeshi authorities as he had been able to leave Bangladesh using his own passport and thus observed that being a Buddhist monk , the applicant ’ s departure may have been more closely scrutinised than that of other travellers undermining his claim to be of adverse interest to the Bangladeshi authorities.

The Tribunal went on to note that there is discrimination against minority Buddhists in Bangladesh , including the killing of male Buddhists associated with monasteries who are seen to head up opposition to the Muslim fundamentalist majority. It did not , however , make any particular findings as to whether or not the applicant would be at risk upon return on this ground.

On 14 June 2010 , another Immigration Judge of the First-tier Tribunal ( Immigration and Asylum Chamber ) granted the applicant permission to appeal on the basis that it was arguably difficult to reconcile the initial Immigration Judge ’ s reasoning. On the one hand , the initial Immigration Judge had accepted that the applicant had been convicted in absentia however , on the other hand , had found that the applicant ’ s overall claim had been totally undermined.

The Upper Tribunal ( Immigration and Asylum Chamber ) dismissed the applicant ’ s appeal on 22 November 2010. It found that , although the determination could have been expressed in better terms , there was no error of law in it.

The Upper Tribunal ( Immigration and Asylum Chamber ) and the Court of Appeal refused the applicant permission to appeal to the Court of Appeal on 19 January 2011 and on 5 May 2011 respectively. The Court of Appeal ( Pitchford LJ) found that it was arguable that , in important particulars , the initial Immigration Judge ’ s determination was “obscure and contradictory” , that it had failed to identify the reasoning which had resulted in the dismissal of the appeal , and that the Upper Tribunal ( Immigration and Asylum Chamber ) had been wrong to decline to find an error of law.

While it was unable to conclude that the appeal raised an important point of principle or practice , or that there was some other compelling reason to justify it hearing the appeal (known as the “second-tier appeal test”) , the Court of Appeal was nonetheless prepared to find a real prospect of success on a point of law. It therefore directed that the application be reviewed at an oral hearing.

On 11 August 2011 , the Court of Appeal refused the applicant ’ s renewed application for permission to appeal. It found that the applicant ’ s case did not satisfy the second-tier appeal test. It held:

“[T]here was nothing to indicate why it should be regarded as meeting the second-tier test. Although we agree ... that some aspects of [the initial Immigration Judge ’ s] reasoning are not easy to follow , this is in part a reflection of the presentation [of the case]. [The initial Immigration Judge] appears to have made a conscientious attempt to extract a coherent case from the somewhat confusing evidence before him. In any event ... we are satisfied that there is no point of general principle , and no other compelling reasons justifying an appeal to this court.”

B. Relevant domestic law

Sections 82(1) and 84 of the Nationality , Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department , inter alia , on the grounds that the decision is incompatible with the Convention.

Appeals in asylum , immigration and na tionality matters were until 14 February 2010 heard by the Asylum and Immigration Tribunal (AIT). Section 103A of the Nationality , Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court , on the grounds that the Asylum and Immigration Tribunal (AIT) had made an error of law , for an order requiring the Asylum and Immigration Tribunal (AIT) to reconsider its decision on the appeal. The High Court could make such an order if it thought that the Asylum and Immigration Tribunal (AIT) may have made an error of law. All applications for reconsideration went through a “filter procedure” , so that an application for reconsideration was first made to an authorised immigration judge of the Asylum and Immigration Tribunal (AIT). If the immigration judge refused to make an order for reconsideration , the applicant was able to renew the application to the High Court , which would consider the application afresh.

Since 15 February 2010 , appeals in asylum , immigration and nationality matters have been heard by the First-tier Tribunal (Immigration and Asylum Chamber). Section 11 of the Tribunals , Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal (Immigration and Asylum Chamber) , with the permission of the First-tier Tribunal (Immigration and Asylum Chamber) or the Upper Tribunal (Immigration and Asylum Chamber) , on any point of law arising from a decision made by the First-tier Tribunal (Immigration and Asylum Chamber) other than an excluded decision.

Section 2 of the Human Rights Act 1998 provides that , in determining any question that arises in connection with a Convention right , courts and tribunals must take into account any case-law from this Court so far as , in the opinion of the court or tribunal , it is relevant to the proceedings in which that question has arisen.

Section 13(6) of the Tribunals , Courts and Enforcement Act 2007 provides for a “second-tier appeals test” for permission to appeal against decisions of the Upper Tribunal (Immigration and Asylum Chamber). Permission to appeal is only to be granted where the Upper Tribunal (IAC) or the Court of Appeal considers: (a) that the proposed appeal would raise some important point of principle or practice; or (b) that there is some other compelling reason for the relevant appellate court to hear the appeal.

COMPLAINTS

The applicant complains that his rights under Articles 2 , 3 , 5 , 6 and Article 1 of Protocol 13 of the Convention will be violated if he is returned to Bangladesh .

QUESTIONS TO THE PARTIES

1. Does the United Kingdom Government accept that the applicant was convicted in absentia in Bangladesh (see the First-tier Tribunal (IAC) ’ s determination at paragraph 30)?

2. If so , is it accepted that , if returned to Bangladesh , the applicant would be made to serve a sentence of 14 years ’ imprisonment?

3. If so , given the length of this sentence and the United Kingdom Border Agency ’ s Operational Guidance Note for Bangladesh (April 2012) finding that conditions in Bangladeshi prisons are likely to reach the Article 3 threshold in some cases , are there substantial grounds for believing that if the applicant is removed from the United Kingdom , he would face ill-treatment in violation of Article 3?