ECtHR - S.H. v. United Kingdom, Application No. 19956/06

Facts:

The Applicant, S.H., is a Bhutanese national of ethnic Nepalese origin who currently lives in Huddersfield. He claimed asylum in the UK, but the application was refused and he was served with removal directions. Prior to his removal, the Court indicated to the United Kingdom Government that he should not be expelled. Relying on Article 3 (prohibition of inhuman or degrading treatment), the Applicant complained that his removal to Bhutan would expose him to a risk of ill-treatment on account of his ethnicity, his status as a failed asylum seeker, and as the close relative of a human rights activist who has been granted asylum in the United Kingdom.

Decision & reasoning:

In the present case the Applicant alleges that he would be at risk of imprisonment and ill-treatment in Bhutan, both as an involuntary returnee and as someone who has made representations about the human rights situation there while out of the country. The Court observes that Bhutan is a closed country and that little information is available concerning its human rights situation. In particular, it notes that the UNHCR does not have access and is unable to monitor returns. Consequently, there is a paucity of objective country information which would either confirm or contradict the Applicant's allegations.

The Court finds that the evidence provided cannot be considered in isolation. Instead, it must be considered against the background of discriminatory treatment afforded to the ethnic Nepalese in Bhutan on account of their ethnicity. In Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, § 111, ECHR 2005‑VII (extracts) the Court held that acts motivated by racial discrimination will constitute an aggravating factor in considering whether treatment falls within the concept of inhuman and degrading treatment. The country information reports indicate that the ethnic Nepalese in Bhutan are required to obtain Non-Objection Certificates in order to access essential services, such as healthcare, education and employment. There are also restrictions on their freedom of assembly, freedom of association and their freedom of movement. Moreover, a significant number of ethnic Nepalese have been declared non-nationals and over 100,000 have been forced into exile. Amnesty International has expressed concerns that the sustained and cumulative discrimination against the ethnic Nepalese in southern Bhutan could amount to persecution and severe risk to the right to life. Therefore, although none of the experts have been able to predict precisely what would happen to the Applicant on return, on balance the Court is satisfied that there are substantial grounds for believing that there is a real risk that the Applicant would be subjected to ill-treatment contrary to Article 3 if returned to Bhutan. Nevertheless, in the absence of any such evidence, the Court must accept that if returned to Bhutan, there is a real risk that the Applicant would be subjected to treatment contrary to Article 3 of the Convention.

There would accordingly be a violation of Article 3 of the Convention if the Applicant were removed to Bhutan.

Outcome:

A violation of Article 3 of the Convention in the event of the Applicant's removal to Bhutan.

Subsequent proceedings:

Resolution CM/ResDH(2011)182: Execution of Judgments of the European Court of Human Rights SH v United Kingdom.

Action Report submitted by the United Kingdom on 22 December 2010

The Government has taken the following individual measures. The Applicant’s expulsion was halted in accordance with Rule 39, as requested by the Court on 9 August 2007, and the order setting directions for his removal to Bhutan was cancelled the next day (i.e. on 10 August 2007). In October 2009, the Applicant submitted an application for leave to remain in the UK on the basis of his marriage to a Bhutanese national with leave to remain in the UK as a refugee. After consideration of the application, it was decided on 16 June 2010 to grant the Applicant leave to remain until 16 June 2013. The Government notes the Court’s judgment that the removal of the Applicant to Bhutan would be contrary to Article 3 of the ECHR and will take that judgment into account if and when the applicant seeks further leave to remain on or before 16 June 2013.

In light of the above the Committee of Ministers decides that it has exercised its functions under Article 46, paragraph 2, of the Convention in the cases concerned and decides to close the examination thereof.

Other sources:

• Human Rights Watch report “Bhutan's Ethnic Cleansing”, 1 February 2008;
• The 2008 US State Department report on the Human Rights Practices in Bhutan;
• The Asian Centre for Human Rights: “South Asia Human Rights Index – 2008”;
• The Association of Press Freedom Activists – Bhutan report entitled “Torrefy of Democratic Values – commenting on budding democracy in Bhutan”;
• The report of the European Commission of Human Rights of 14 December 1973 in East African Asians v the United Kingdom (Decisions and Reports 78-A, pg 62), expert reports and statements by Amnesty International