George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The first applicant is a Sri Lankan national who was born in 1961 and lives in Wattala. The second applicant is her mother, who was born in 1935 and is a Sri Lankan national who lives in Bromley. The third applicant is her brother, who was born in 1967 and is a British national who also lives in Bromley. All three applicants are represented by the Aire Centre.

The facts of the case may be summarised as follows.

The first applicant is an ethnic Tamil who holds Sri Lankan citizenship. On 6 April 2009 she arrived at Heathrow airport on a flight from Sri Lanka via Kuwait. She held a valid visitor’s visa for the United Kingdom and passed through immigration controls.

The first applicant went to stay with her brother, the third applicant, who was resident in London. Her mother, the second applicant, resided with the brother.

The first applicant subsequently instructed a solicitor who, by letter to the Home Office dated 24 April 2009, indicated that she wished to make an asylum claim on the ground that she feared mistreatment because of her imputed political opinion if returned to Sri Lanka. The letter recorded that she claimed to have a well-founded fear of persecution because she was an ethnic Tamil from northern Sri Lanka; she had been detained and tortured by the Sri Lankan authorities; the Sri Lankan authorities had a record of her as a suspected LTTE sympathiser; she was “confused and psychologically scarred”; she would be returning from London, which the Sri Lankan authorities regarded as a centre of LTTE activity and fundraising; and she had escaped from Sri Lankan government custody.

She attended an asylum screening interview on 27 April 2009. Her interviewer was female. According to the applicant the interview was conducted with the aid of a male, Tamil-speaking interpreter. She was asked if she had a preference whether she was interviewed by a man or a woman and answered that she did not.

On 29 November 2010 the first applicant’s asylum interview took place. The interview was conducted by a female interviewer assisted by a female, Tamil-speaking interpreter. The first applicant maintained her claim for asylum or humanitarian protection on grounds of an alleged risk of illtreatment if returned. She claimed that on 4 February 2009, she had been stopped at an army checkpoint in Colombo. Because her identity card listed her place of birth as Karampon, a town in a predominantly Tamil area of northern Sri Lanka, she had been accused of planning acts of violence and detained by government agents for several days at an unknown location. Her husband and others had managed to secure her release, provided that she report to the authorities weekly.

She further alleged that on 27 March 2009, she had been assaulted by three Criminal Investigation Department (“CID”) officers who had come to her home looking for her husband while he and their three sons were out. She had been taken to a remote camp in an unknown, governmentcontrolled area of Sri Lanka for questioning, where she had been tortured. She had subsequently become ill and had been transferred to a hospital with a CID guard stationed in the hospital grounds. She had escaped after three days, at 2 a.m. when there was no guard, with the help of a nurse and her husband, who was a taxi-driver. She had paid them with a gold earring. She had not returned to her home in Colombo but had spent a week at the house of her husband’s friend in Wattala before leaving the country with the help of an agent, whom she had paid with her jewellery and the title deeds to her home. She had not contacted her husband or sons since her arrest but had heard that they were no longer living at her former home. She had entered the United Kingdom on a visitor’s visa which she had obtained in November 2008 to enable her to visit the third applicant and his wife, who were resident in London and had just had a baby.

The Secretary of State refused the first applicant asylum and humanitarian protection on 20 January 2011.

On the question of the credibility of her account of events in Sri Lanka prior to her arrival in the United Kingdom, the Secretary of State made a number of comments. First, she did not accept as credible, having regard to immigration control procedures, the first applicant’s claim at the asylum interview that she did not speak to an immigration officer when passing through immigration control. She concluded that the first applicant had gained illegal entry to the United Kingdom by verbally deceiving the immigration officer and placed “significant weight” on the mandatory damage done to her credibility in this regard. She further found that her credibility was damaged by the fact that she had not claimed asylum immediately on arrival at Heathrow but “four months” after (in their written submissions, the Government accepted that the reference to “four months” was an error and should have read “three weeks”).

Second, in respect of the first applicant’s alleged arrest in February 2009, the Secretary of State found that, having lived in Colombo for a number of years, the first applicant would already have registered with the authorities there (referring to information contained in the Country of Origin Information Report for Sri Lanka, November 2010 – the “COI Report 2010”). Doubt was cast on her account of events because her claim that she was detained for the reason that her ID card stated that she was from Karampon was not considered consistent with the purpose and use of compulsory registration in Colombo, which was to identify and question further those not from the area at the time of registration. Her account was also vague: she could not say who the people who had come with her husband to collect her were, or how her husband had secured her release. Despite having been released with an obligation to report on a weekly basis, she did not know to whom she had reported, where she had reported or how many times she had reported. The Secretary of State considered that her vague responses cast doubt on her claim. She therefore did not accept that the first applicant had been arrested and detained in the circumstances claimed, and this damaged her credibility.

Third, in respect of her alleged arrest in March 2009, the Secretary of State considered the first applicant’s claim that she was of interest to the CID to be inconsistent with her account that the guard left the hospital, enabling her to escape. The Secretary of State also noted that she had all the necessary documents and means to leave Sri Lanka legally and would not have required the assistance of an agent. Her account that she was assisted by an agent was therefore not consistent with her personal circumstances. Further, since the first applicant had been too afraid to return to her home address, she had not explained how she had obtained her 2008 passport for travel. This, too, cast doubt on the claim that she had left Sri Lanka in the circumstances described. The Secretary of State was of the view that although the first applicant had stated that she had had no contact with her husband or children since her arrest, it was unlikely that she would have fled Sri Lanka without attempting to warn them of the CID’s interest in her husband. For all of these reasons, the Secretary of State did not accept that she had been arrested or detained in March 2009 and her credibility was damaged as a result.

The Secretary of State considered the risk to the first applicant on return to Sri Lanka in light of these adverse credibility findings and the relevant case-law. As the material facts of her claim were not accepted, the Secretary of State concluded that the Sri Lankan authorities would have no adverse interest in her. In terms of the risk factors identified by the Asylum and Immigration Tribunal in the leading country guidance case of LP (see paragraphs 70-71 below), the only ones applicable to her were her Tamil ethnicity, her return from London and the fact that she had made an asylum claim abroad. These did not create, either separately or cumulatively, a real risk of ill-treatment on return.

As for Article 8, the Secretary of State noted that the first applicant relied on her relationships with her mother, brother and sister (who had arrived in the United Kingdom with the first applicant and had also claimed asylum). There was no evidence that these relationships involved more dependency than the usual emotional ties, and she had failed to show family life with her sister. There was equally no evidence that she had established private life in the United Kingdom since her arrival on 6 April 2009.

The first applicant appealed to the First-tier Tribunal (Immigration and Asylum Chamber). Her appeal was heard with that of her sister, who had also been refused asylum. The hearing took place before a male Immigration Judge and with the assistance of a male interpreter. The judge had before him, inter alia, a copy of the screening and asylum interview records, the Secretary of State’s reasons for refusal and the grounds of appeal. He also had before him a witness statement in which the first applicant set out full details of her account, and claimed in particular that she had never registered in Colombo; that her passport had been in a locker at the bank; and that her husband’s friend had recovered her passport on her behalf. The applicants relied on the COI Report 2010 together with relevant case-law and other supporting documents and objective material. The judge heard oral evidence from the applicant, her sister and her brother.

The appeal was dismissed on 17 March 2011. The judge made a number of findings of fact, explaining that he had given careful attention to the oral evidence in the case, the reasons for refusal letter, the grounds of appeal, the applicant’s witness statement and the supporting documents, including the country evidence and the country guidance cases of LP and TK (see paragraphs 70-71 below).

He upheld the Secretary of State’s finding that the first applicant would have had to register with the police in Colombo, explaining that had she not done so, she would have been stopped at checkpoints long before February 2009. He also observed that the Sri Lankan authorities had issued her with a passport in November 2008, even though they knew she was from Karampon. He commented on her description of her release from the February 2009 period of detention, noting that her husband could not have known where she was being detained when she herself did not know and that she was unable to provide details of the reporting requirement imposed. He made an adverse finding of credibility.

As regards the second period of detention in March 2009, the Immigration Judge found that her account of her arrest made no sense: if the CID had wanted to find her husband they would have waited for him or gone to look for him, and would not have taken her instead. The judge described the ill-treatment that she alleged had taken place, namely that a polythene bag with petrol in it had been placed over her head and her head had been repeatedly submerged in water, and found it not credible that during this treatment her gold earrings would have remained in place, allowing her to use them to bribe the nurse later. If the CID were interested in her and wished to obtain information through torture, the judge considered it not credible that they would have arranged for her medical treatment by a doctor and a nurse. He continued:

“32. ... Despite the fact that the CID had apparently seen fit to place a guard on the door they did not see fit to ensure that the guards changed shifts simultaneously thereby allowing the appellant to escape, dressed as a nurse having first given the genuine nurse her earrings which were also used to pay the nurse’s brother to pick her up in his rickshaw taxi and then to deliver her to a friend’s house even though he could not possibly have known in advance how long the journey would last or whether he would have enough petrol to make the trip because he did not know where the destination would be and [the first applicant] did not know where she was being held. I am trying to work out what was the point of dressing up as a nurse when there was nobody around to see her but there seems little point in picking up on small points when the entire story is so ludicrously lacking in credibility that it would struggle to be acceptable even as the plot of a ‘Carry-on’ film”.

As regards the first applicant’s seeking refuge with her husband’s friend in Wattala, the judge observed that she and her driver “would have woken up the entire village” by knocking on doors to find out where her friend lived. He further observed that the first applicant had “apparently forgotten”, when claiming that she could not go home because no-one was there, that her husband and children would have come home and wondered where she had gone. He found her explanation that her friend had told her that they were living elsewhere to be “an embellishment designed to plug a gap in the evidence”. The judge made critical comments about the sisters’ accounts of how they contacted each other by mobile phone and rejected the first applicant’s account of having used an agent, on the basis that she had a passport with a valid visitor’s visa so had no need for one. Her claim of having sold the house to pay the fees he said was “a total fabrication”.

The Immigration Judge found that the sisters had obviously put their heads together and that their escape from Sri Lanka was nothing more than “a coordinated pleasure trip with a sinister intention, namely to deceive the UK authorities by cooking up a story once they had arrived at their brother’s house”. The judge had no doubt that they had been in regular contact with their respective husbands and that the first applicant had been in contact with her sons. He reviewed all the applicable risk factors set out in LP (see paragraph 71 below) and concluded that the first applicant and her sister could be returned to Sri Lanka. In particular, there was no evidence that a failed asylum-seeker was per se subject to persecution on return and the first applicant and her sister were of no interest to the authorities. There was nothing about them save their ethnicity which could possibly cause any authority to make inquiries.

As to the manner in which the first applicant had claimed asylum, the judge commented on her failure to make a claim at Heathrow airport or immediately upon arrival at her brother’s house. He found that her mother’s alleged ill-health was not sufficiently serious to have prevented her from contacting the authorities immediately. He continued:

“40. ... The appellants claim to suffer from the effects of torture but I find that this is all part of the smokescreen. They have persisted in maintaining a false story and their conduct in seeking anonymity [in the course of proceedings before the Tribunal] is but another aspect of the smokescreen which they have thrown up. They have taken advantage of the [National Health Service] and the local school system. Their brother has abused the society which gave him refuge. I have no hesitation in finding that their conduct adversely affects what remains of their credibility.”

The judge concluded:

“41. I find in each case that the appellant is sufficiently resourceful to be able to return and to re-establish herself in a country where she spent most of her life and where her family still lives. She is not suffering from any life-threatening illnesses ... I find on all the evidence adduced that there are no compassionate circumstances or other matters showing why the appellant could not return to Sri Lanka. I find that her ties are to Sri Lanka and not to the United Kingdom. Removal is appropriate and proportionate.

Given the conclusions as outlined above, I also find in each case that the appellant has not shown substantial grounds for believing that she will face a real risk of serious harm in her country of origin or that she is unable, or owing to such risk, unwilling to avail herself of the protection of her country of origin ...”

The first applicant and her sister sought permission to appeal against the Tribunal’s determination on grounds, inter alia, of bias and the fact that the Immigration Judge had failed properly to consider their case under Articles 2 and 3 of the Convention.

On 4 April 2011 the application was dismissed by a different Immigration Judge of the First-tier Tribunal who explained:

“The Immigration Judge spent some time dealing with the appellants’ cases and for a number of perfectly clear reasons disbelieved the entirety of their accounts. It is clear that he expresses himself in very forceful terms; however, for each matter he disbelieves he gives clear reasons [which] do not display bias, but which simply explain why he has reached the conclusion, and whilst many might not have expressed themselves so forcefully the expressions themselves do not display an arguable error of law.

While it is true that there is no clear evaluation in relation to article 8, in looking at the appellants’ and [their] witness’s statements there is nothing in them to suggest any real family life or private life for either appellant save for presence with other adult family members. I see no skeleton argument for either, which suggests that no real article 8 case was put forward. As a result there appears to me to be no realistic prospect of success on appeal in relation to article 8...”

The first applicant and her sister renewed their application to the Upper Tribunal. On 6 July 2011 the application was dismissed for the reasons given in April by the First-tier Tribunal. The Senior Immigration Judge added that, although the initial Immigration Judge’s opinions had been robustly expressed, there was no evidence of bias.

With the rejection of the application to appeal, the first applicant’s appeal rights were exhausted.

In August 2011 the first applicant’s NHS counselling psychologist informed her general practitioner that she was “having suicidal thoughts of throwing herself in front of a train or traffic” and that she claimed to have stepped out in front of a car two weeks earlier, which had fortunately stopped in time.

On 6 September 2011, the general practitioner confirmed that the first applicant suffered from depressive illness “due to her family situation”, that her antidepressant medication was not working, that she had been referred to a psychiatrist and that her prognosis would be poor until support for her to remain in the United Kingdom had been achieved. He referred to her “suicidal ideation” and problems with her status in the United Kingdom.

On 14 September 2011 the United Kingdom Border Agency (“UKBA”) issued directions for the first applicant’s removal to Sri Lanka by charter flight at 3 p.m. on 28 September 2011. She was taken into immigration detention.

On 15 September 2011 medical personnel at the immigration removal centre recorded in an R35 report that the first applicant had told them that she had been tortured by the Sri Lanka army and that, as part of that torture, had been raped.

On 15 September 2011, with the assistance of new legal representation, the first applicant made further submissions to the Secretary of State. Her representatives submitted that details of her ill-treatment while in detention had not previously been disclosed because she was too traumatised to give full disclosure to her brother, her male lawyer and the male interpreter at the asylum interviews, and that trauma could cause individuals to block out painful events. They explained that she had been referred to the Helen Bamber Foundation for further investigation and included a copy of the R35 report.

The further submissions also referred to the fact that the first applicant had disclosed suicidal thoughts and that there were concerns for her well-being. The various letters from her GP and counselling psychologist were enclosed. Relying also on Article 3 of the Convention, the first applicant submitted that return to the place where torture and illtreatment had taken place could cause further mental deterioration.

On 23 September 2011 the Secretary of State informed the first applicant that her removal would proceed as planned. In her letter, the Secretary of State reiterated that it had not been accepted that the first applicant had ever been detained by the Sri Lankan authorities and that the First-tier Tribunal had not believed her account, even to the smallest degree. The Secretary of State further noted that while the first applicant claimed that her former reticence to disclose details of the rape was because she had male solicitors and interpreters, she had shown no compunction in raising the claim when removal became imminent.

As regards the first applicant’s mental health, the Secretary of State noted that she had not told her GP about her torture, and had attributed her depression and suicidal ideation to an undisclosed family situation and her placement in immigration detention. It was considered that she had not been honest with the United Kingdom authorities and was seeking to claim that she had been raped as a means of remaining in the United Kingdom, perhaps to obtain medical treatment or to resolve problems with her family. The Secretary of State added that there was no reason to believe that she would not have access to medicine and treatment in Sri Lanka, and that her mental health problems did not meet the Article 3 threshold.

The Secretary of State maintained her position that removal would also be a proportionate interference with the first applicant’s rights under Article 8 since there was no evidence of the required level of dependency in her relationship with her mother and adult siblings; she had failed to come “even close to showing” that her moral and physical integrity would be breached on return to Sri Lanka; and she had not demonstrated anything more than the usual personal ties to the United Kingdom.

In conclusion, the Secretary of State found that the points made by the first applicant in her submission, taken together with material previously considered, did not create a realistic prospect of success before an Immigration Judge (see paragraph 68 below). The submissions did not therefore amount to a fresh claim and there was no right of appeal against that decision.

According to the first applicant’s detention records, on 22 September 2011 she attended a bail hearing where she claimed that she had tried to kill herself several times. Upon her return to the immigration removal centre, an immediate action plan was put in place. It was decided that she would be observed hourly in order to ensure that she remained safe. A healthcare appointment was arranged for her that night and a doctor’s appointment was arranged for the following day to explore her mental health issues. Regular case reviews subsequently took place.

On 24 September the first applicant was interviewed by an independent male psychiatrist with the assistance of a female interpreter. According to his report of 26 September 2011, in that interview she gave further details of her rape by three men in uniform during her first period of detention in February 2009 and her beating and gang rape by four Sri Lankan officers during her second period of detention in March 2009. The psychiatrist noted that she had displayed clear signs of distress consistent with emotional trauma when giving her account of events.

The psychiatrist was of the view that that the applicant presented with symptoms consistent with depression. He identified the main perpetuating factors as her pending repatriation and her current detention. He considered that on a balance of probabilities she was suffering from post-traumatic stress disorder, based on the assumption that the alleged detention and abuse in Sri Lanka had taken place.

He recorded that he was fully aware of the unexplained discrepancies between the account given to him and that given to UKBA. He explained that he could not comment on her credibility, which was a matter for the courts. However, he observed that it was not unusual for patients who had suffered significant trauma to recollect peripheral information at the expense of other information, or to distort memories.

The psychiatrist noted that the first applicant could not explain why she had not shared the information earlier. He considered that there was not enough evidence to suggest that she had dissociated herself from the traumatic events and therefore did not believe that dissociation was responsible for her previous omissions. However, he noted that during his interview with her, he was assisted by a female Tamil-speaker from India, and hypothesised that this might have reduced the threat of cultural stigma from the disclosure.

Finally, the psychiatrist recorded that the first applicant had expressed a desire to commit suicide if returned to Sri Lanka, claiming that this would be preferable to being tortured and killed by soldiers. He recorded that officials at the immigration removal centre had placed the first applicant on suicide watch, and recommended that this be maintained. He was of the view that her recent detention had significantly contributed to worsening her mental state. He noted that she had no active plans to end her life unless sent back to Sri Lanka. He recommended various therapies but could not comment on whether they would be available in Sri Lanka.

The first applicant’s detention record logs the results of the hourly observations of the first applicant from 5.30 p.m. on 22 September until 9.55 a.m. on 28 September. Aside from legal and medical appointments and discussions with staff members about her removal, the record shows that she regularly ate meals with friends, she attended church, she talked to other detainees, she washed her clothes and she slept.

On 27 September 2011, on the basis of the psychiatrist’s report and other fresh evidence, including a letter from a Sri Lankan lawyer stating that the she had been detained in February 2009 and had appeared before Colombo Magistrates’ Court, represented by him, the first applicant made further, urgent representations to the Secretary of State.

At 11.41 a.m. on 28 September 2011, her further representations were rejected. The Secretary of State noted that the first applicant had previously made no mention of having been produced before Colombo Magistrates’ Court. There were also inconsistencies between the lawyer’s account and that of the first applicant: he said that she had been released on cash bail to report to a particular police station; she said that she had been released with a weekly reporting requirement but did not know where. The Secretary of State therefore concluded that the letter was not reliable.

As regards the first applicant’s mental health, the Secretary of State noted that according to the psychiatrist’s report this had been worsened by her detention and concluded that it would therefore improve after removal. There was no clear evidence of a real risk that the first applicant would commit suicide if returned. Despite the first applicant’s representations to the contrary, the Sri Lankan health system provided adequate treatment for depression. There were no exceptional or extreme circumstances in her case. Her ability to travel had been assessed and had there been any doubts, her removal would not have proceeded. However, there had been no doubts.

Finally, as regards Article 8, the Secretary of State accepted that the first applicant had family life in the United Kingdom but maintained that her removal would be proportionate.

Upon receiving the Secretary of State’s decision the first applicant commenced judicial review proceedings in the High Court. She claims that the papers were lodged at some time prior to 2 p.m. on 28 September 2011. In her judicial review application, she alleged that the Secretary of State’s failure to treat the post-appeal evidence concerning her rapes, psychiatric illness and suicide risk as a fresh claim violated domestic law as well as Articles 3 and 8 of the Convention. She also sought an injunction to stop the Secretary of State removing her prior to consideration of her judicial review claim. The various tribunal decisions were not lodged with the claim.

According to the detention records, the first applicant was asked by immigration removal centre staff on the morning of 28 September whether she would go to the airport without causing problems and answered that she would. She was therefore taken to reception for transfer to the flight at 9.55 a.m., and no problems were reported. According to the first applicant, she was carried on to the flight to Sri Lanka at or around 3 p.m. by two men.

Many of the forty-nine other Sri Lankans on the flight manifest had also applied to the High Court for permission for judicial review on the basis that they faced a real risk of torture upon arriving in Sri Lanka. Twenty-three individuals were removed from the flight manifest prior to departure as the High Court ordered that they were not to be removed pending those proceedings. However, the first applicant’s case was not considered in time to prevent her removal (see paragraph 52 below) and no order was made to suspend removal pending consideration of her case.

The flight departed with fifty Sri Lankan nationals on board at 4.15 p.m. on 28 September 2011.

On 30 September 2011 the High Court refused permission to seek judicial review on the papers. As to the failure to consider the applicant’s claim before her deportation, the High Court judge stated:

“The claimant was due to be removed to Sri Lanka at 15.00 on 28 September. The directions for her removal had been served on her on 14 September. However, it was not until 28 September that her claim for judicial review proceedings challenging the directions for her removal was lodged. Her application for a stay on her removal directions came before me on 28 September as the ‘immediates’ judge. The claimant was one of 20 or so failed asylum-seekers due to be removed on the same flight who were asking for a stay on their removal. Although some of the applications could be considered by other judges when they became available, it was plain by about 14.00 that I would not be able to consider all the remaining applications by 15.00.

In those circumstances, I was informed by [UKBA’s Operational Support and Certification Unit] which of the remaining applicants were on the main manifest, and which were on a reserve list – and therefore liable to be included on the main manifest only if someone on the main manifest was removed from the flight. Although my priority was to deal with the applications of those on the main manifest, I had not reached the claimant’s case by 15.28 when I was told that the doors were about to close. I was informed yesterday that the claimant had been on the flight.”

On the merits of the claim, the judge noted that if he had considered the first applicant’s case on 28 September, his difficulty would have been that her solicitors had not included in the bundle of documents the decision of the Immigration Judge. He said:

“It would not have been possible for me to conclude that it was arguable that the rejection of the claimant’s solicitors’ representations, and the refusal to treat those representations as fresh claims, was legally flawed without reading that decision.”

The judge concluded that since the applicant had now been removed to Sri Lanka, no purpose would be served by reconsidering the matter once the decision of the Immigration Judge had been provided or by permitting her claim to proceed.

The first applicant renewed her application for permission to seek judicial review on 4 October 2011. The application was refused on 18 January 2012 following an oral hearing. The judge summarised the applicant’s case as follows:

“9. ... [T]he claimant’s case was that there was in this case post appeal evidence of additional brutality and its after effects, in particular creating an increased dependency on her family in the UK and a risk of suicide, those justifying the Secretary of State in treating this application as a fresh application for asylum, engaging both issues of Article 3 and human rights consideration in addition pursuant to Article 8.”

He reviewed the determination of the First-tier Tribunal and observed:

“11. It is clear that, having heard evidence from both the claimant and her sister ... the judge concluded, in emphatic terms, that neither sister was credible in any relation to the claims for asylum. In short, he concluded that both the claimant and her sister had told a pack of lies.

It follows that it is against that very unpromising background of evidence from the claimant having been heard and considered by a judge and effectively damned in such strong terms that the question whether the Secretary of state was right to conclude that any further claim based on additional materials stood no reasonable prospects of success.”

He noted the arguments of the first applicant’s counsel, namely that the Secretary of State had failed adequately to take into account the psychiatrist report in reaching her conclusion on the Article 8 issue; that it was not open to the Secretary of State, in light of that report and the Sri Lankan lawyer’s letter, to conclude that the first applicant’s evidence was inconsistent and untrue; and that it was perverse for the Secretary of State to have reached the findings she did on the first applicant’s suicide risk, given the evidence. He continued:

“15. In my view, the problem with the submissions that [counsel for the applicant] has advanced ... is that they overlook the fundamental question of credibility and the context in which this new evidence was raised very much at the eleventh hour. The immigration judge’s determination was, as I have indicated, a savage series of findings in terms of the credibility of the claimant’s account. On the face of it, in circumstances where this claimant had given evidence dealing with her alleged treatment in custody in Sri Lanka in 2009 and the brutal treatment meted out to her, all of which evidence was considered by the immigration judge, it seems to me that the Secretary of State was well entitled to conclude that there was no realistic prospect of success in circumstances where completely new allegations were now being advanced some two days before removal directions were set and in circumstances where none of that evidence, including the medical evidence ..., provided a sensible or satisfactory explanation for the failure to mention these important allegations at the time of the original appeal.”

He found that in these circumstances, it was impossible to characterise the Secretary of State’s decision as unlawful and dismissed the renewed application for judicial review.

The first applicant alleges that, after arriving at Colombo airport, she was detained and interrogated by Sri Lankan authorities. One of her interrogators struck her on the forehead. She further claimed that, when released from this initial detention and preparing to leave the airport, she was abducted, blindfolded and removed to an unknown location by an unknown person. Her clothing was forcibly removed. Her captors asked whether she was “still” linked with the LTTE and had taken part in LTTE activities while living in the UK. They accused her family of funding the LTTE. The men showed her copies of her asylum papers they had found in her bag, which she claimed had been packed by United Kingdom officials at the immigration removal centre, and asked her questions about them. They then beat her, kicked her, stabbed her with a broken ballpoint pen and did further “unspeakable bad things” to her. Eventually they forced her to sign statements written in Sinhalese.

The first applicant alleges that her interrogators ultimately released her from their custody. After seeking treatment at a hospital, she became frightened, went into hiding and was unable to contact her family in the United Kingdom for more than three months. She has submitted a copy of a letter from a doctor at the National Hospital of Sri Lanka in Colombo addressed “to whom it may concern”. The letter states that, according to the hospital records, on 6 October 2011, the first applicant “presented with multiple physical injuries and psychological trauma.” She had “sustained head, arm and leg injuries, scratches around [her] neck and bruises on her face caused by torture and other ill-treatment”.

The first applicant also maintains that, since emerging from detention, she has twice attempted to commit suicide, as documented by a letter from the same doctor dated 14 January 2012. She claims that she is currently staying with an acquaintance and that her husband and sons remain missing.

Two officials from the British High Commission in Colombo met the first applicant’s flight as it arrived at the airport. One of the officials has set out his account of events in a letter dated 3 October 2011. He explained that the group of fifty returnees was escorted to a seated area in immigration arrivals. They were addressed by a Tamil-speaking migration officer who explained the processes that they would have to go through. The British High Commission official then addressed them in English. In his letter, he said:

“None of the returnees appeared ill or distressed in any way and their main concerns seemed to be around being reunited with their baggage and belongings.”

The first returnees were interviewed from around 11.15 a.m., by the Department of Immigration and Emigration first and then by the State Intelligence Service and CID jointly to ascertain their mode and route of travel to the United Kingdom, what they had been doing there and whether they had been involved in previous criminal activity in Sri Lanka. Once the interviews were completed, their passports were stamped allowing them to leave. They were then addressed by a representative of the International Organization for Migration, who gave them a travel grant equivalent to GBP 50 for onward travel and accommodation if required and took their contact details.

The first returnee was allowed to leave at 1.20 p.m. The last of the returnees passed through customs at approximately 5 p.m. The official accompanied most of the returnees to the baggage reclaim area, where he oversaw the collection of their bags. The official was made aware that one of the first male returnees processed had been identified as the subject of an outstanding criminal arrest warrant and would therefore be arrested once he had completed immigration procedures. The official was provided a copy of the court warrant. He was subsequently informed that the arrest had taken place and spoke to the police officer who had made the arrest and the returnee himself.

By supplementary letter dated 13 September 2012, intended to address questions arising in the proceedings before this Court, the official confirmed that no female on the flight was questioned for any considerable length of time. Aside from the one returnee who was arrested, no other returnees were detained. All returnees were addressed either by him or his colleague, and one of the two accompanied every single passenger to the baggage reclaim area and reunited them with their bags. The officials gave the returnees their business cards. The official emphasised that he and his colleague remained with the passengers throughout the whole process and would have noticed had any of them shown signs of illness, injuries or distress. Each of the returnees had ample opportunity to seek assistance from him and his colleague.

The official accepted that in theory a returnee could have been apprehended as she was about to leave the airport. He continued:

“The arrivals area is normally crowded with waiting friends and relatives, plus the media were in attendance specifically for the charter flight. It would however be questionable as to why the authorities would wait until that stage when the person could have been arrested or detained during the border control process if they were of further interest.”

Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provides a right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) 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. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a further right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on a point of law.

Paragraph 353 of the Immigration Rules provides that further submissions made after an asylum claim has been determined 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) has not already been considered; and (ii) taken together with the previously considered material, creates a realistic prospect of success.

UKBA’s policy instruction on judicial review and injunctions provides that UKBA will normally defer removal where a judicial review application has been properly lodged with the High Court in accordance with the applicable Practice Direction. However, where it is considered appropriate because of the complexity, practicality and cost of a charter flight, a judicial review application may not defer removal unless an injunction is obtained from the High Court.

The country guidance case-law applicable at the relevant time was set out in LP (LTTE area – Tamils – Colombo – risk?) Sri Lanka CG [2007] UKAIT 00076 (“LP”) (subsequently endorsed by this Court in NA. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008) and TK (Tamils – LP updated) Sri Lanka CG [2009] UKAIT 00049 (“TK”). The findings in both cases are set out in detail in the Court’s judgment in E.G. v. the United Kingdom, no. 41178/08, §§ 13-16, 31 May 2011.

In short, the risk factors identified in LP and confirmed in TK were the following:

(1) Tamil ethnicity;

(2) a previous record as a suspected or actual LTTE member;

(3) a previous criminal record and/or outstanding arrest warrant;

(4) bail jumping and/or escaping from custody;

(5) having signed a confession or similar document;

(6) having been asked by the security forces to become an informer;

(7) the presence of scarring;

(8) return from London or other centre of LTTE fundraising;

(9) illegal departure from Sri Lanka;

(10) lack of an ID card or other documentation;

(11) having made an asylum claim abroad;

(12) having relatives in the LTTE.

Section 7 of UKBA’s policy instruction on gender issues in asylum claims covers interviewing and assessment of credibility. Section 7.1 notes that each applicant will have been asked at screening to indicate a preference for a male or female interviewer. It explains that it should normally be possible to comply with a request made in advance of an interview. It clarifies that requests made on the day of an interview for a male or female interviewer or interpreter should be met “as far as is operationally possible”.

Section 7.2 states that while the substantive asylum interview represents an applicant’s principal opportunity to provide full disclosure of all relevant factors, the disclosure of gender-based violence at a later stage in the determination process should not automatically count against her credibility. It explains that there may be a number of reasons why an applicant might be reluctant to disclose information, for example feelings of guilt, shame, and concerns about family honour, or fear of traffickers or having been conditioned or threatened by them. In particular, it refers to the possibility that the applicant has suffered trauma, which could lead to memory loss or distortion. It provides that decision-makers should be aware of this and how such factors might affect how a woman responds during interview.

UNHCR’s “Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees” set out a series of procedural best practices “in order to ensure that gender-related claims, of women in particular, are properly considered in the refugee status determination process” (paragraph 36). Paragraph 35 of the guidelines refers to claimants’ possible reluctance to identify the true extent of the persecution suffered or feared because of, inter alia, trauma and shame.

The guidelines also propose that claimants be informed of the choice to have interviewers and interpreters of the same sex as themselves, and they should be provided automatically for women claimants (paragraph 36(iii)). They further suggest that both open-ended and specific questions which may help to reveal gender issues relevant to a refugee claim be incorporated into all asylum interviews, in part because female claimants may fail to relate questions that are about torture to the types of harm which they fear (such as rape, sexual abuse, female genital mutilation, honour killings, forced marriage, etc.) (paragraph 36(vii)).

Paragraph 6 of Resolution 1765 on gender-related claims for asylum provides:

“In addition to the problem of gender issues not being properly taken into account in the assessment of asylum claims, the asylum procedure in member states often makes it difficult for women to tell their full story. A woman who faces a male interviewer or interpreter can be reluctant to speak freely and give a full account of the violence she has experienced, whether gender based or not. Moreover, the officials involved in the asylum procedure often lack adequate training on gender issues and therefore fail to ask the right questions or to analyse the evidence before them properly. This problem may be exacerbated by the use of country of origin information that ignores gender issues or has little gender relevance.”

Paragraph 8 states:

“Women and girls seeking asylum in Council of Europe member states have the right to have their protection claims assessed by an asylum system that is sensitive, in all aspects of its policy and operation, to the particular forms of persecution and human rights abuses that women face because of their gender.”

Paragraphs 9.3, 9.6 and 9.7 call on member States to ensure that women are automatically provided with assistance and interpretation by female counsellors and interpreters when formulating their asylum claims and filling out their applications; to guarantee that interviewers and interpreters dealing with female asylum seekers are always women; and to ensure that the asylum interview is carried out in a gender-sensitive way and, in particular, that questions relevant to gender-based violence and gender-related persecution are asked.


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1968 and lives in Sofia.

On 13 May 2007, at around 7.30 p.m., the applicant and one of his friends, Z.N., also a Sudanese national, were involved in a fight with two Bulgarian youths outside a shopping centre in central Sofia. The two Bulgarian youths, M.V. and R.G., fled before the police arrived, but they were arrested and remanded in custody for breach of the peace (хулиганство). The report drawn up by the police officers described the two Bulgarian youths as skinheads, adding that they were already known to the police for various offences such as breach of the peace, theft, burglary and drug trafficking.

The police initiated a preliminary investigation. The applicant and his friend, the two Bulgarian youths and an eyewitness were interviewed. According to the applicant’s submissions, Z.N. and he had been coming out of the shopping centre when they were attacked by the two young men. The first Bulgarian, who had a shaved head, had thrown the applicant on to the ground and kicked him. The applicant had then got up and punched him back. The two Bulgarians had insulted them by calling them “Negros” (негри), also shouting “dirty Negros, what are you doing here?”. The second Bulgarian, who had long hair, had brandished a knife and threatened Z.N. with it. The applicant and Z.N. had fled, and had met a police patrol, which had started looking for the two Bulgarians and managed to arrest them a few minutes later. Z.N.’s statements broadly corroborated those of the applicant.

According to M.V., the fight had begun because one of the Sudanese youths had shoved him with his shoulder when they had passed each other at the entrance to the shopping centre. He said that he had not paid any attention to what his friend R.G. had been doing. The fighting had stopped at some stage and his friend and he had fled when someone warned them that the police were on their way.

R.G. confirmed that one of the Sudanese men had pushed his friend M.V. as he passed by and that that was when the fight had started. Blows had been exchanged on both sides, and M.V. had had his face bloodied. At one stage R.G. had taken out his knife, which had put an end to the fight, and the two groups had then gone their separate ways. M.V. and R.G had been arrested by the police a few minutes later.

The eyewitness stated that he had seen one of the Bulgarians, the one with the shaved head, trip up one of the Sudanese men, who had then riposted with a punch. A general fight had then broken out among the four persons involved.

The applicant was examined by a forensic medical expert on 15 May 2007. According to the medical certificate drawn up on that occasion, the applicant had a swelling of the nasal base, an approximately onecentimetrelong abrasion on the left-hand side of his nose, covered with a scab, a swollen finger on his left hand and a contusion to the right knee. According to the medical certificate, the injuries noted had caused physical pain. They had resulted from blows struck by blunt instruments and could have been occasioned in the manner described by the applicant, namely in the course of a fight.

At the end of the investigation the police transmitted the evidence gathered to the public prosecutor for a decision on instituting a criminal prosecution for racist violence pursuant to Article 162 § 2 of the Criminal Code.

By an order of 15 June 2007 the district prosecutor decided not to bring a criminal prosecution. He considered that while a fight had indeed occurred among the four men, it had not been established that M.V. and R.G. had acted for reasons linked to Z.N’s and the applicant’s racial origins. The causes of the altercation were unclear, and the three versions of the facts – by the applicant and Z.N., by M.V. and R.G., and by the eyewitness –conflicted as to how and by whom the fight had been started. The two Sudanese men had claimed that they had been called “dirty Negros”, but the fact that it had been precisely their racial origin that had motivated the violence had not been corroborated by any other piece of evidence. The eyewitness, in particular, had not mentioned having heard any exchanges between those involved. The prosecutor concluded that in the absence of evidence of the specific motivation provided for by law, the offence had not been made out.

The applicant lodged an appeal with the higher prosecutor against the decision not to prosecute. He submitted that the investigation had been incomplete and that the investigators should have questioned M.V. and R.G. about their motivation and their reasons for wearing black clothing, “Ranger-style” military shoes and even Nazi insignia, as he remembered seeing such insignia on a T-shirt worn by one of the assailants. According to the applicant, the police officers who had attended the scene should also have been interviewed about how M.V. and R.G. had been dressed at the time of their arrest. Similarly, the investigators should have explicitly asked the eyewitness whether he had heard the exchanges between those involved, which they had not.

On 15 October 2007 the Sofia public prosecutor’s office confirmed the district prosecutor’s decision. The public prosecutor held that there was nothing to suggest that the violence had been perpetrated on the grounds of the applicant’s racial origin as the sole fact that he was black was insufficient to make out the offence.

By a letter of 29 July 2008 the applicant’s lawyer asked for a copy of the criminal case file, without providing reasons for her request. On 6 August 2008 the district prosecutor refused to supply the copies requested on the grounds that the lawyer had already been notified of the prosecutor’s decisions and that now that the appeal had been dismissed, the case was closed.


Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant is a Lebanese national who was born in 1980. He is currently in Sweden. He is represented before the Court by Mr T. Fridh, a lawyer practising in Gothenburg.

The Swedish Government (“the Government”) were represented by their Agent, Ms H. Lindquist, of the Ministry for Foreign Affairs.

On 29 December 2007 the applicant and his wife arrived in Sweden. They applied for asylum, and before the Migration Agency (Migrationsverket) the applicant essentially stated the following. He and his wife are Christians from South Lebanon. His brother, a member of the South Lebanese Army, had disappeared in 2000 and the applicant had contacted Hezbollah to inquire about his whereabouts. After the war in 2006, Hezbollah had accused the applicant of being a spy for Israel and had harassed him due to his religious beliefs. In September 2007 two members of Hezbollah had come to his and his wife’s house and physically assaulted his wife. He had tried to scare the intruders by firing into the air. Subsequently, he and his wife had hidden in a Christian neighbourhood in Beirut. Since, allegedly, the Lebanese authorities were unable to protect them, they had decided to leave the country. If returned to Lebanon, he would risk being killed.

On 4 March 2009 the Migration Agency rejected the applicant’s and his wife’s requests for asylum. It noted that, according to the UNHCR, the general situation in Lebanon after the armed conflict during the summer of 2006 and cessation of hostilities was such that Lebanese citizens who had fled because of the armed conflict were no longer automatically in need of international protection. It held therefore that the general situation in Lebanon did not in itself constitute a sufficient basis for granting asylum. Turning to the applicant’s individual claims, the Agency found that there was no evidence that he had been accused of being a spy, that he was wanted by Hezbollah or that the alleged threats and assaults were connected to Hezbollah. Furthermore, there was no evidence that the Lebanese authorities would be unable or unwilling to protect him. Moreover, it noted that nothing indicated that the applicant had controversial political or other affiliations which would make him of interest to any particular group in Lebanon. Consequently, the Agency concluded that, since the applicant had not substantiated his alleged grounds for asylum, and no other reasons for asylum had been established, his request should be rejected and his deportation to Lebanon ordered.

The applicant appealed to the Migration Court (Migrationsdomstolen) against the Migration Agency’s decision. He maintained his claims and added that one of the reasons why Hezbollah thought he was a spy was that he had volunteered as a paramedic, which had allowed him to move freely in the area of the armed conflict. If returned to Lebanon, he would risk being imprisoned or killed by Hezbollah because they considered him to be a spy who had defied Hezbollah and fired at them in his home. He could not report the incident to the police since Hezbollah exerted power over the authorities in Lebanon.

On 21 December 2009 the Migration Court upheld the Migration Agency’s decision. It found that the applicant could have been of some interest to Hezbollah due to his inquiries about his brother, his work as a paramedic and the threats and assaults to which the applicant and his wife had been subjected. However, the court found that the abuse the applicant and his wife feared from Hezbollah constituted criminal acts which fell within the responsibility of the Lebanese authorities. Since the applicant and his wife had not contacted the Lebanese authorities, they could not be deemed to have exhausted the protection available in Lebanon or made it probable that those authorities were unwilling or unable to protect them. Furthermore, the court held that, as the applicant had not been politically active, and his brother’s engagement with the South Lebanese Army dated back many years, there were no reasons to believe that the applicant would be of any particular interest to Hezbollah.

On 15 March 2010 the Migration Court of Appeal (Migrationsöverdomstolen) refused the applicant leave to appeal.

In July 2010 the applicant submitted to the Migration Agency a document alleged to be a Lebanese judgment by default dated 29 May 2008. According to the judgment, the applicant had been convicted, inter alia, of premeditated murder and sentenced to ten years’ imprisonment, including hard labour.

The Migration Agency considered the submission of the document to entail a request for a stay of the enforcement of the deportation order and a re-examination of its previous decision due to impediments to the enforcement. In its decision of 24 November 2010 the Agency noted that the applicant had not previously claimed that the Lebanese authorities had issued a warrant for his arrest and that he had not provided any information on how he had obtained the document in question. It therefore had the authenticity of the judgment examined. The examination, which revealed, inter alia, that the document was a copy created using toner technology and that the stamps and signatures on it had been produced by photocopiers or printers, led to the conclusion that there were strong indications that it was not authentic. The Agency accordingly decided that there was no ground for a re-examination of its decision of 4 March 2009. The applicant appealed to the Migration Court which, on 17 December 2010, upheld the Agency’s conclusions.

On 15 March 2014, the deportation order became timebarred and shortly thereafter the applicant and his wife again applied for asylum.

Before the Migration Agency, the applicant maintained his previous submissions but made some changes and additions. In particular, he claimed that he had shot and killed one of the men who had forced their way into his home in 2007 and that that man was the son of a high-ranking Hezbollah politician. Furthermore, due to his alleged conviction in absentia in 2008, Hezbollah had sought him at his parents’ and their neighbours’ homes, which showed that he was wanted by Hezbollah. He submitted an arrest warrant dated 5 July 2010.

On 6 November 2014 the Migration Agency rejected the applicant’s and his wife’s new requests for asylum. As concerns the arrest warrant, which allegedly was based on the above-mentioned conviction, it was found to be of a very simple and easily falsified nature. Furthermore, it was undated, seemed to be a copy and was not accompanied by an explanation as to how the applicant had obtained it. In view of this, the Agency concluded that the documents submitted had very low value as evidence and were not sufficient to substantiate the applicant’s asylum claims. The Agency then turned to the oral information submitted by the applicant. It found that, after having been refused asylum in 2010, he had changed his story significantly concerning the alleged incident at his home without providing any reasonable explanation. Moreover, he had failed to give a reasonable explanation as to why he had not mentioned the fatal shooting of the intruder, the conviction and the arrest warrant in the original asylum proceedings. The Agency thus found reason to question whether the alleged incident had occurred at all. It also noted that the applicant and his wife, despite numerous questions, had only submitted very parsimonious and vague answers concerning alleged visits and inquiries by Hezbollah to their parents and other family members. In addition, the Agency noted that the incident had allegedly occurred in 2007 and that there was no evidence indicating that Hezbollah would have any particular or current interest in the applicant. Furthermore, the Agency confirmed its previous findings regarding the general situation in Lebanon. Lastly, in regard to the applicant’s and his wife’s private life within the meaning of Article 8 of the Convention, it found that, for the majority of the time, they had resided in Sweden illegally and had much stronger links to Lebanon than to Sweden. Thus, they could not be granted leave to remain due to their residence in or connections to Sweden. The Agency concluded that no grounds for residence permits had been established and therefore ordered the applicant’s and his wife’s deportation to Lebanon.

The applicant appealed to the Migration Court. He maintained his claims and submitted, inter alia, documents from a lawyer and a security official at the Rafic Hariri International Airport which stated that he had been convicted and sentenced to ten years’ imprisonment and was wanted by the Lebanese authorities.

On 21 April 2015, after having held an oral hearing, the Migration Court upheld the Migration Agency’s decision. It agreed with the reasoning of the Agency concerning the probative value of the written evidence submitted and noted that the new documents were of a simple nature and did not substantiate his need for protection. Furthermore, the court found that the applicant’s and his wife’s accounts of the alleged incident in their home in 2007 were incoherent and contradictory. Consequently, it concluded that they had not demonstrated that Hezbollah had any interest in them, that they were exposed to risks against which they could not be protected by the Lebanese authorities or that they had been persecuted due to their Christian faith or for any other reason. Lastly, it shared the Agency’s reasoning concerning the lack of sufficient links to Sweden for granting them leave to remain.

On 10 June 2015 the Migration Court of Appeal refused leave to appeal.

The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (utlänningslagen, 2005:716).

An alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden (Chapter 5, section 1, of the Act). The term “refugee” refers to an alien who is outside the country of his or her nationality owing to a wellfounded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group, and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (Chapter 4, section 1). This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).

Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has acquired legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment, or where there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under these criteria, the Migration Agency may instead decide to re-examine the matter. Such re-examination is to be carried out where it may be assumed, on the basis of new circumstances relied on by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and that these circumstances could not have been raised previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Agency will decide not to grant re-examination (Chapter 12, section 19).

In March 2017 the US Department of State released the Lebanon Country Report on Human Rights Practices for 2016. It stated:

“Lebanon is a parliamentary republic based on the 1943 National Pact, which apportions governmental authority among a Maronite Christian president, a Shia speaker of the Chamber of Deputies (parliament), and a Sunni prime minister...

Civilian authorities maintained control over the armed forces and other security forces, although Palestinian security and militia forces, the designated terrorist group Hizballah, and other extremist elements operated outside the direction or control of government officials...

The most significant human rights abuses during the year were torture and abuse by security forces, harsh prison and detention center conditions, and limitations on freedom of movement for Palestinian and Syrian refugees...

Other human rights abuses included lengthy pretrial detention; a judiciary subject to political pressure and long delays in trials; violation of citizens’ privacy rights...

Despite the presence of Lebanese and UN security forces, Hizballah retained significant influence over parts of the country, and the government made no tangible progress toward disbanding and disarming armed militia groups, including Hizballah...

Authorities failed to observe many provisions of the law, and government security forces, as well as extralegal armed groups such as Hizballah, continued the practice of extrajudicial arrest and detention, including incommunicado detention. Additionally, the law permits military intelligence personnel to make arrests without warrants in cases involving military personnel or involving civilians suspected of espionage, treason, or weapons possession.”

The International Religious Freedom Report for 2015 of the US Department of State, released by the Bureau of Democracy, Human Rights and Labor, contained, inter alia, the following in respect of Lebanon:

“The constitution states there shall be absolute freedom of conscience and guarantees the free exercise of religious rites for all religious groups provided the public order is not disturbed. The constitution states there shall be a “just and equitable balance” in the apportionment of cabinet and high level civil service positions among the major religious groups, a situation reaffirmed by the Taef Agreement, which ended the country’s civil war and mandated equal representation between Christians and Muslims in the parliament. Some minority Christian groups complained they were not granted proportionate representation in the cabinet, high level civil service positions, or the parliament. ...

... Religious leaders of Muslim and Christian communities reported places of worship continued to operate in relative peace and security, and that relationships among individual members of different religious groups generally remained amicable.

Statistics Lebanon estimates 35.5 percent of the population is Christian. ...”

In a report of 30 November 2015 on his mission to Lebanon, the Special Rapporteur on Freedom of Religion or Belief of the UN Human Rights Council (OHCHR) set out, inter alia, the following conclusions:

“In Lebanon, people are free to confess and practise their religions and beliefs in the way they see fit. Conversion in different directions is possible and indeed a reality – in stark contrast to the situation in most other Middle-Eastern countries. People can also bear public testimony to their faith and engage in missionary or dawa activities. Religious diversity is a visible and audible reality, as churches and mosques often stand in close vicinity and the ringing of bells at times intermingles with the Muslim call to prayer. Some Lebanese openly declare themselves as agnostics or atheists, and express critical views on religion in general, which is mostly appreciated as something quite natural in an open society.

The country’s pluralistic heritage is a counterpoint to the aggressive agendas of sectarian homogenization that haunt some neighbouring countries. Over the centuries, a culture of interreligious coexistence has emerged that today helps to build resilience against extremist interpretations of religious traditions. Many families comprise persons of different religious orientations. Many people live, learn and work together across confessional lines, a situation that quite naturally fosters the discovery of common interests, values and convictions.”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1953 and lives in Krosno.

From 29 April 1997 to 29 April 1999 he was employed by a Polish company which was carrying out construction work in Germany. The Polish workers were employed on the basis of the international agreement signed on 31 January 1990 between Poland and Germany on the secondment of workers of Polish companies to carry out construction work (Umowa między Rządem Rzeczypospolitej Polskiej a Rządem Republiki Federalnej Niemiec o oddelegowaniu pracowników polskich przedsiębiorstw do realizacji umów o dzieło z 31 stycznia 1990 r., Dz.U. 1994, Nr 98, Poz. 474). The rates of the applicant’s pay were determined by an employment contract and the regulations which the contract referred to.

On 16 July 1999 the applicant lodged a civil claim against his former employer for payment. He claimed that, instead of the rate of 8 or 8,5 German Marks (DEM) per hour which he had been receiving under his employment contract in the period from 29 April 1997 to 29 April 1999, he should have been receiving a higher rate of pay. Relying on the provisions of the above-mentioned international agreement, he claimed that he should have been receiving a rate comparable to that of the German workers occupying the same positions.

On 19 June 2000 the Opole Regional Court gave a partial judgment in which it established that the applicant was entitled to the rates of pay fixed in the employment contract.

The court observed that the essential issue in the case was whether the applicant was entitled to a higher rate of pay, equivalent to that paid to the German employees working in similar positions at the material time. It was noted in this connection that the parties had not chosen to regulate the employment contract under German law. Instead Polish labour law was applicable.

In so far as the applicant relied on the provisions of the international agreement of 1990 (see paragraph 6 above) and argued that it should serve as the basis for setting his rate of pay, the court observed that this agreement was of a public-law character. Its object and purpose was to regulate relations between Poland and Germany in the construction market with a view to preventing unfair competition by Polish companies setting wages of construction workers working in Germany at too low a level, and to protect Polish workers against being paid too low a rate.

The applicant appealed. He argued that the Opole Regional Court had violated the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that the applicant’s rates of pay were fixed in his employment contract was erroneous, because that contract did not contain any rates (only symbols which were not understood by the applicant). Besides, in his view, the court had violated the provisions of the abovementioned international agreement, according to which the rates of the applicant’s pay should be comparable to those received by the German workers occupying the same positions.

On 15 November 2000 the Court of Appeal quashed the first-instance partial judgment on account of its procedural shortcomings and remitted the case to the lower court. The Court of Appeal comprised three judges. Judge H.Sz. sat on the bench. He was not a judge rapporteur and he did not preside.

The Court of Appeal found that in the applicant’s case there were no grounds for delivering a partial judgment. It noted that a partial judgment could be delivered only when a part or some of the claims in a lawsuit had been sufficiently clarified for the decision. In the applicant’s case there was only one claim and thus there had been no grounds for delivering the partial judgment.

In the final part of the written grounds for the judgment the Court of Appeal stated that the position of the Opole Regional Court as to the substance of the case was supported by the wording of the international agreements and existing domestic case-law. This part of the court’s reasoning read as follows:

“As to the substantive grounds for the court’s legal view expressed in the judgment under appeal, it should be stated that it finds support in the content of the Agreement between the Governments of the Republic of Poland and the Federal Republic of Germany on the secondment of workers of Polish companies to carry out construction work (Journal of Laws 1998/84, items 474 and 475) as well as in the hitherto interpretation of this agreement in judicial decisions (see, e.g., III A Pa 29/00 Wrocław Court of Appeal, decision of 31 May 2000).”

On 10 December 2002 the applicant challenged one of the judges, alleging his partiality. He further requested that the case be transferred to another town because, in his view, the judges were not impartial and the defendant company “had enjoyed considerable influence in Opole.”

On 20 March 2003 the Wrocław Court of Appeal dismissed the applicant’s request.

On 5 April 2003 the applicant appealed.

On 16 January 2004 the Supreme Court dismissed the applicant’s appeal, finding no grounds for the judges of the Opole Regional Court to step down.

On 24 May 2004 the Opole Regional Court gave judgment granting the applicant’s claim in part and dismissing the remainder. The Regional Court ordered the defendant company to pay the applicant the sum of 11,934 Polish zlotys (PLN) for unused leave. As to the rate of the applicant’s pay, the court reiterated the reasoning of the judgment of 19 June 2000 and dismissed the claim (see paragraph 8 above).

The applicant appealed.

On 25 November 2004 the Wrocław Court of Appeal dismissed the appeal. The court accepted the reasoning of the first-instance court.

On 20 January 2005 the applicant’s lawyer lodged a cassation appeal on his behalf.

On 29 November 2005 the Supreme Court examined the cassation appeal, quashed the challenged judgment and remitted the case to the Court of Appeal.

The Supreme Court considered that the Polish-German agreement of 1990 was not a source of universally binding law and did not contain provisions applicable to labour relations. The agreement could not be regarded as constituting the legal basis for claims of employees concerning remuneration for their work. Moreover, Poland’s accession to the European Union did not have an impact on the applicability of that agreement. Furthermore, the European Union law did not apply retroactively to situations predating Poland’s accession.

The fact that employees’ claims concerning the applicable minimum wages could not be regarded as having their legal basis in the said PolishGerman agreement did not mean, in the court’s opinion, that those claims could not be raised upon the basis of employment contracts. In the Supreme Court’s view, the Court of Appeal had not sufficiently clarified the meaning of those contracts in the light of statements made by the Polish company concerning the applicant’s employment conditions and the obligations imposed on the company by the provisions of German law to which those statements referred.

On 8 December 2006 the Wrocław Court of Appeal, having taken into account the recommendations of the Supreme Court, again dismissed the applicant’s appeal lodged against the Regional Court’s judgment of 24 May 2004. The court reiterated that the applicant was entitled to the rates of pay fixed in his employment contract.

On 28 March 2007 the applicant lodged a further cassation appeal with the Supreme Court.

He first raised substantive arguments. He averred that the Opole Regional Court had disregarded the provisions of the Labour Code. In the applicant’s opinion, the court’s finding that his hourly rate of pay had been fixed in his employment contract had been erroneous, because that contract had not contained any rates (only symbols which the applicant had not been able to understand). Besides, in his view, the court had disregarded the provisions of the applicable international agreement (see paragraphs 6 and 8 above), according to which the applicant’s rate of pay should have been comparable to that received by the German workers occupying the same positions.

He further complained that the appellate court had failed to take heed of the interpretation of the applicable law expressed by the Supreme Court in its previous judgment as to the applicable rate of the applicant’s salary.

It was further argued that the court had failed to take into consideration the evidence gathered in the case. The court had also erred when refusing to allow certain requests for evidence to be taken.

The applicant further complained that in the written grounds for its judgment the Court of Appeal had failed to provide reasons for which it had disregarded the interpretation of relevant applicable provisions made in the past by the Supreme Court – a substantive question which had been crucial for the outcome of the case.

On 14 May 2008 the Supreme Court, sitting as a bench of three judges, dismissed the applicant’s cassation appeal.

Judge H.Sz., who had sat on the bench of the Court of Appeal deciding the case on 15 November 2000, had in the meantime been promoted to the Supreme Court. He sat on the bench of the Supreme Court. He was not a judge rapporteur and he did not preside.

The Supreme Court noted that the appellate court, contrary to the applicant’s objection, had followed the interpretation of the applicable law expressed by the earlier judgment of the Supreme Court (pronounced on 29 November 2005) given in the same case. In this judgment the Supreme Court had confirmed that the international agreement referred to by the applicant could not be regarded as a legal source of employees’ and employers’ rights and obligations. The appellate court’s decision had followed this view and it had confirmed that the substantive provisions of that agreement had not applied to the setting of the applicant’s rate of pay, which had been fixed by his employment contract.

The Supreme Court stressed that in his cassation appeal the applicant raised the same complaint which had already been made in his earlier cassation appeal. This was inadmissible as under section 39820 of the Code of Civil Procedure (see paragraph 33 below) it was not allowed to found a cassation appeal against a judgment rendered after a new examination of a case upon complaints contrary to the interpretation previously established by the Supreme Court dealing with the earlier cassation appeal lodged in the same case.

Additionally, the Supreme Court noted that the interpretation made by the lower courts of the applicant’s contract of employment, seen as a whole, had taken into account the applicant’s employer’s declarations submitted to the German authorities and also a wealth of other evidence in so far as it had been relevant for the determination of the applicant’s working conditions and remuneration.

The Supreme Court further observed that the applicant’s remuneration had been set at the level of the minimal remuneration of German employees performing similar work determined on the basis of the Law on Collective Bargaining.

In so far as the applicant complained in his cassation appeal of the alleged failure of the courts to take further evidence and of the assessment of the evidence they had carried out, those complaints could not be examined in the context of those proceedings. It was not the task of the Supreme Court in cassation proceedings to act as an ordinary court of appeal and to examine issues concerning the admissibility and assessment of evidence and the factual findings made by the lower courts.


Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1955 and lives in Hamburg.

The applicant is a civil servant working as a lawyer for the Hamburg tax authorities. In 1995, the applicant was a board member of the local branch of a registered association called “Red Aid”. In this capacity he opened a bank account for the association. He and two other members of the association were authorised to draw on the account. The account was used for the deposit of donations and membership fees. The account data was therefore published, for example in brochures. In 2000 the applicant left the board of the association.

In 2003, a third person reported to the police that he had bought a watch via eBay. The watch had turned out to be a fake. He had tried to rescind the purchase when he found out, but the seller – of whom he knew only the email address “sternschnuppe756@uboot.com” – refused to cooperate. The police investigations showed that a certain Mr D. was registered with eBay as user of the email address “sternschnuppe756”. The bank account registered for the email address “sternschnuppe756” was the account of the “Red Aid” association. Investigations further showed that various other users, who were registered with eBay, cited the bank account of the “Red Aid” association as their bank account. The police also found out that the user of “sternschnuppe756” had traded computer programmes via eBay. An investigation of the transactions of the “Red Aid” bank account showed that there had only been one transaction connected to eBay: eBay had tried to collect fees (EUR 36.33) on 7 October 2003. The “Red Aid” association had protested against the payment, which had been returned on 27 November 2003. Mr D. was questioned by the police. He explained, convincingly, that he had nothing to do with the email address “sternschnuppe756” or the bank account of the “Red Aid” association.

On 21 September 2004, upon a request of the prosecutor’s office of Munich I, the Munich District Court issued a search warrant in respect of the applicant’s home (and the home of three other members of the “Red Aid” association who were authorised to draw on the association’s bank account) on suspicion that they had committed “copyright piracy” by selling fake goods such as watches and computer programmes. The search warrant authorised the search and seizure of computers and documents containing information about the sale of the fake watch and the computer programmes.

On 8 December 2004 the applicant’s (shared) flat in Hamburg was searched. The police found none of the items they were searching for. Instead, by coincidence, the police found 463.732 grams of hashish, which contained 39.09 grams of pure THC (tetrahydrocannabinol), and two defective weighing scales in the flat. The amount and quality of the hashish was asserted by an expert. The amount was enough for 2606 consumption units. The criminal proceedings regarding the suspected “copyright piracy” were discontinued. However, new proceedings for possession and trafficking of a substantial amount of drugs were initiated against the applicant.

The applicant, represented by counsel, lodged a complaint against the search warrant before the criminal courts arguing that the warrant, and consequently the search, had been unlawful and had infringed his constitutional right to respect for his home under Article 13 of the German Constitution (“the Basic Law”; see paragraph 22, below). The Munich District Court and the Munich I Regional Court dismissed the complaint.

The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court.

On 13 November 2005 the Federal Constitutional Court held that the complaint was manifestly well-founded, found a violation of Article 13 of the Basic Law, declared the house search unlawful and quashed the search warrant and the decisions of the District and the Regional Court. The court left open whether the few indications supporting the initial suspicion that the applicant might have committed “copyright piracy” justified the ordering of a search warrant. In any event, however, the Federal Constitutional Court ruled that having weighed the few indications supporting a suspicion that the applicant could have committed “copyright piracy” against the massive impact of a house search on the applicant’s constitutional right to respect for his home, the issuing of a search warrant and hence the house search had not been proportionate. It would have been possible and necessary to take other investigative measures that would have interfered less with the applicant’s right before searching the applicant’s home.

On 29 July 2005 the applicant was indicted by the Hamburg prosecution on charges of possession of and trafficking in a substantial amount of drugs. On 24 January 2006 the Hamburg District Court convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and imposed a ten months’ suspended prison sentence. The judgment was exclusively based on the presence of hashish found during the house search of 8 December 2004.

The applicant lodged an appeal on points of law before the Hamburg Court of Appeal, arguing that he should have been acquitted as the evidence found during the house search could not be admitted as evidence in the criminal proceedings for drug possession. As the search warrant had been invalidated by the Federal Constitutional Court, the police had never had a right to enter the applicant’s shared flat and would therefore never have had a legal possibility of finding the drugs at the applicant’s flat. Moreover, the seizure of the hashish had not even been covered by the unlawful search warrant. The infringement of the applicant’s right to respect for his home had been so severe that the evidence which had coincidentally been found during the house search could not be admitted as evidence against the applicant.

On 5 September 2006 the Court of Appeal quashed the District Court’s judgment and referred the case back to the District Court because it was of the view that the District Court had not sufficiently examined whether the hashish belonged to the applicant. As he lived in a shared flat, the room, and hence the drugs, could have belonged to any of his flatmates. With regard to the admissibility of the evidence the Court of Appeal found that the hashish found during the search could be used as evidence against the applicant. The infringement of the applicant’s basic rights with regard to the criminal proceedings concerning copyright piracy had not been so serious that the applicant’s interest in respect for his home outweighed the public interest in prosecution. The Court of Appeal referred to the Federal Constitutional Court’s case-law (see paragraph 26 below), according to which unlawfully obtained evidence could be used in criminal proceedings as long as, after a thorough balancing of the different interests at stake, the public interest in prosecution did not have to stand back against the right to respect for his home of the person concerned and as long as that person’s rights had not been violated on purpose. It reiterated the Federal Constitutional Court’s finding that the applicant’s basic rights had been seriously infringed (see paragraph 12 above). Whether or not the search warrant had been sufficiently precise, and whether a sufficient initial suspicion for issuing a search warrant had been present or not, did not have to be determined because, even assuming that this had not been the case, such shortcomings did not render the obtained evidence unlawful. Because of the seriousness of the crime of drug possession, and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home. Furthermore, the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. The Court of Appeal was hence of the view that the hashish found during the search could be used as evidence against the applicant.

Considering that it was legally unclear whether or not the Court of Appeal’s findings regarding the admissibility of the evidence found during the house search were binding on the lower courts, the applicant lodged a constitutional complaint with the Federal Constitutional Court. On 27 December 2006 the Federal Constitutional Court rejected the complaint as inadmissible.

In the resumed proceedings before the Hamburg District Court, the applicant made a statement that the room in which the hashish had been found was exclusively used by him. On 18 April 2007 the District Court acquitted the applicant, ruling that the hashish found during the house search could not be used as evidence against him. The court noted that under the well-established case law of the Federal Constitutional Court (see paragraph 26 below) an unlawful house search did not automatically mean that the evidence seized during such a house search could not be used in the trial against the person concerned. Evidence might, however, be precluded if the violation of the applicant’s right to respect for his home had been particularly serious. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It was of the view that the initial suspicion that the applicant might have committed the offence of copyright piracy had been so vague that the issuing of a search warrant had not been justified at all. Hence, the applicant’s right to respect for his home had been infringed in such a severe way that despite the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution could not outweigh the applicant’s interest in respect for his home.

On 5 October 2007, on appeal by the prosecution, the Regional Court quashed the acquittal, convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and sentenced him to a six months’ suspended prison sentence. As regards the question whether the applicant had been in possession of the drugs the Regional Court relied on a statement of the applicant dated 13 March 2007 according to which the room in which the hashish had been found was solely used by himself. Furthermore, the Regional Court was of the view that the Court of Appeal’s findings in its judgment of 5 September 2006 (see paragraph 15 above) on the admissibility of the hashish as the sole evidence were binding and that hence the hashish found in the applicant’s flat could be used as evidence against him. Moreover, the court made it clear that even if the Court of Appeal’s findings were not binding in this respect it was itself of the view that, weighing the applicant’s interest in respect for his home against the public interest in prosecution, the latter prevailed and that the evidence was thus admissible.

The applicant subsequently lodged a fresh appeal on points of law before the Court of Appeal, arguing that the Regional Court should not have admitted the evidence. On 16 September 2008 the Court of Appeal dismissed the appeal. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant’s interest in respect for his home. It took the view that, considering the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant’s interest in respect for his home because the applicant’s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search.

The applicant lodged a fresh constitutional complaint, arguing that the admission of the evidence infringed his right to respect for his home under Article 13 of the Basic Law and his right to a fair trial under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law (see paragraph 23 below). On 2 July 2009 the Federal Constitutional Court dismissed the complaint (file no. 2 BvR 2225/08). The decision was served on the applicant’s counsel on 3 August 2009. The court assessed the applicant’s arguments mainly under the head of Article 13 of the Basic Law. It held that the Court of Appeal had balanced all the interests at stake in a way that was neither arbitrary nor unreasonable and that the conviction of the applicant, although exclusively based on the evidence found during the house search, did not infringe the applicant’s constitutional rights. With regard to the applicant’s claim that the use of the hashish seized as evidence against him had violated his rights under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law, the court held that the principle of a fair trial had been applied in a way that was neither unjustifiable nor arbitrary. Hence the applicant’s constitutional rights had not been violated.

As the applicant was a civil servant, disciplinary proceedings were initiated in view of the criminal charges against him. The disciplinary proceedings were adjourned during the criminal proceedings. Following the conviction of the applicant by the criminal courts, the competent authorities formally noted that the applicant had committed a disciplinary offence and discontinued the proceedings as the offence had not been of a kind or degree demanding disciplinary measures.