ECtHR - T.I. v. The United Kingdom, Application No. 43844/98, Decision as to the Admissibility, 7 March 2000
| Country of applicant: | Sri Lanka |
| Court name: | European Court of Human Rights (Third Section) |
| Date of decision: | 07-03-2000 |
Keywords:
| Keywords |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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Medical Reports/Medico-legal Reports
Description
“Expert medical report used as evidence relevant to the application for international protection. Where psychological elements are relevant, the medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case. The conclusions of the medical report will determine the examiner's further approach.” |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be provided against persecution or mistreatment by: “(a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Torture
Description
“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession, punishing him/her for an act s/he or a third person has committed or is suspected of having committed, or intimidating or coercing him/her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
The case involved a Sri Lankan asylum seeker whose application was rejected in Germany, and upon seeking asylum in the UK, was rejected on the basis of the Dublin Convention and that his application corresponded to Germany. The Court found no breach of a Convention obligation from the UK by its decision to remove him to Germany.
Facts:
The case originated with an application lodged against the UK alleging that the UK’s conduct in ordering his removal to Germany, from where he will be summarily removed to Sri Lanka, would be a violation of Art. 2, 3, 8, and 13 ECHR.
The applicant lived in Jaffna, Sri Lanka until May 1995, an area controlled by the LTTE, a Tamil terrorist organization. The LTTE forcibly took the applicant from 1993 until June 1994 from time to time for a few days to mend their radio equipment and later held him prisoner for more than 3 months. In May 1995, after escaping the LTTE settlement, he was arrested by the Sri Lankan army which suspected him of being an LTTE member. Soldiers beat him and held him in detention until September 1995, during which he was tortured and ill-treated. He was released after his uncle paid a bribe and later experienced beatings by a pro-Government Tamil group, and was tortured in October 1995 by police officers until he was released in January 1996, again after his uncle paid a bribe.
Shortly after his release, the applicant left Sri Lanka and arrived in Germany on 10 February 1996, after which he claimed asylum but his application was rejected, as was his appeal. The Administrative Court noted that the actions of the LTTE could not be attributed to the Sri Lankan State and he would be sufficiently safe from political persecution if he returned to the south of Sri Lanka. In September 1997, the applicant left Germany and travelled to the United Kingdom via Italy, and then claimed asylum. In January 1998, the UK requested that Germany accept responsibility for his asylum request pursuant to the Dublin Convention, which Germany agreed, after which his removal was ordered. The applicant applied for judicial review but was refused, and then he appealed to the Court of Appeal, which held that the Secretary of State was entitled to conclude that the German authorities adopted an approach within the range of a response acting in good faith to implement its Convention obligations. The applicant’s leave to petition the House of Lords was refused and the Secretary of State refused to exercise his discretion to grant leave to remain on compassionate grounds. Removal directions to Germany were issued in August 1998. In September 1998, after an examination while the applicant was in detention, a medical report was issued concluding that his scars and psychological symptoms were those of persons who had been detained and beaten. The applicant made a second application for judicial review, submitting this medical evidence and challenging the certification of Germany as a safe third country, as it failed to recognize refugee status when persecution emanated from non-State agents, but leave was refused. His removal was set for October 1998 and then deferred. A second medical report was prepared in July 1999 also confirming that his scars and symptoms were consistent with the applicant’s account. In August 1999 the applicant requested that the Secretary of State reconsider his decision, following the July 1999 decision Adan, Subaraskan and Aitesgeur, but the Secretary stated he was not willing at this stage to consider the merits of his claim, as he was pursuing an appeal in respect of Adan.
Decision & reasoning:
1. Alleged Breach of Article 3
The Court reiterated that the obligation under Article 3 does not depend on the source of the risk involving the direct or indirect responsibility of the receiving state. Art. 3 protections may extend to situations where the danger emanates from non-public officials or from consequences to health from the effects of serious illness. The Court explained that it must subject all the circumstances surrounding the case to rigorous scrutiny.
In this case, the applicant was threatened with removal to Germany, an intermediary country which is also a Contracting State, where a deportation order was previously issued to remove him to Sri Lanka. The Court found that this indirect removal does not, however, affect the responsibility of the UK to ensure that the applicant is not exposed to torture or ill-treatment, nor can the UK rely automatically on the Dublin Convention arrangement. When examining the risk of ill-treatment in Sri Lanka, the Court noted that it did not hear substantial arguments from either the UK or German Governments, yet the materials presented by the applicant (medical reports, photographs of his scars, and reports by Amnesty International, UN Special Rapporteur, and the US Department of State) gave it concerns as to the risks faced by the applicant should he be returned. The Court also found that there was considerable doubt that the applicant would either be granted a follow up asylum hearing or that a second claim would be granted in Germany after noting 1) that the German Administrative Procedure Act places strict limitations on the admission of new evidence, 2) the previous decision of the Bavarian Administrative Court that the applicant lacked credibility would be given significant weight in a further consideration, and 3) the German authorities would not take into account for the purposes of asylum or protection under Art. 3 pursuant to section 53(4) of the Aliens Act that the applicant would be at risk from LTTE members or individual security force members acting outside Sri Lankan law. It found there would be little likelihood of his claims succeeding under section 53(4) Aliens Act.
The Court noted, however ,that the apparent gap in protection resulting from the German approach to non-State agent risk is met to some extent by the application of section 53(6) Aliens Act, although the Government had not provided any example of this section being applied to a failed asylum seeker in a second asylum procedure. The Court was satisfied, on the basis of assurances by the German Government, that the applicant’s claims, if accepted by the authorities, could fall within the scope of section 53(6) and attract its protection. It found that it was largely a matter of speculation that the authorities might still reject the case. Therefore to the extent that there was a possibility of the applicant’s removal, it was not shown to be sufficiently concrete. The Court was further not persuaded by the applicant’s argument concerning the high burden of proof placed on asylum seekers in Germany as preventing a meritorious claim in practice.
In conclusion, the Court found that it was not established that there would be a real risk that Germany would expel the applicant to Sri Lanka in breach of Art. 3, and as such the UK had not failed in its obligation under this provision by deciding to remove the applicant to Germany. Nor was it shown that this decision was taken without regard to the existence of adequate safeguards in Germany to avoid the risk of treatment contrary to Art. 3. Therefore, this part of the application was rejected as manifestly ill-founded pursuant to Art. 35 §§ 3 and 4 ECHR.
2. Alleged Breaches of Articles 2 and 8
The Court found that no separate issues arose under Art. 2 and 8 from those under Art. 3 requiring examination.
3. Alleged Breach of Article 13
The Court considered the applicant’s claim that judicial review did not provide an effective remedy as required by Art. 13 because it did not permit any “anxious scrutiny” to be given to the merits of his claim, but was confined to considerations of the Secretary of State’s application of the Dublin Convention. The Court recalled that the scope of the obligation under Art. 13 varies depending on the nature of the applicant’s complaint under the Convention and the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant. In previous cases the Court found that judicial review proceedings in the UK were an effective remedy in relation to complaints raised under Art. 3 in contexts of deportation and extradition. As such, it found there was no reason to differ in the present case. The applicant was able to challenge the reasonableness of the Secretary’s decision. The Court was satisfied that the substance of the applicant’s complaint under the Convention – whether the Secretary of State could order his removal to Germany – did fall within the scope of examination of the English courts, which had power to afford him the relief he sought, and accordingly, his complaint was manifestly ill-founded and must be rejected.
Outcome:
Application inadmissible.
Observations/comments:
The rationale underpinning T.I. was later overturned in M.S.S v Belgium and Greece.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| UK - Immigration Rules |
| UK - Asylum and Immigration Act 1996 |
| Germany - The Aliens Act |
| Germany - The Administrative Procedure Act |
Cited Cases:
| Cited Cases |
| ECtHR - Waite and Kennedy v. Germany [GC], Application No. 26083/94 |
| ECtHR - Aksoy v Turkey, Application No. 21987/93 |
| ECtHR - H.L.R. v. France, Application no. 24573/94 |
| ECtHR - Soering v. The United Kingdom, Application No. 14038/88, 7 July 1989 |
| ECtHR - Vilvarajah and others v. The United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, 30 October 1991 |
| ECtHR - D. v. The United Kingdom, Application No. 30240/96, 2 May 1997 |
| ECtHR - Ahmed v. Austria, Application No. 25964/94, 17 December 1996 |
| ECtHR - Nsona and Nsona v. the Netherlands, Appl. No. 23366/94, 28 November 1996 |
Follower Cases:
| Follower Cases |
| ECtHR – A.E.A. v Greece, Application no. 39034/12, 15 March 2018 |
| Portugal - I. v. Immigration and Borders Service, No. 2364/18.0BELSB, 14 May 2020 |
Other sources:
Amnesty International Report for 1998 concerning Sri Lanka
Report by the Medical Foundation for the Victims of Torture entitled "No Safe Haven: Nigerian, Kenyan and Sri Lankan Torture Victims in the United Kingdom" dated October 1997
Report of the United Nations Special Rapporteur on extra-judicial and summary executions dated 10 March 1998
US Department of State "Sri Lanka Country Report on Human Rights Practices for 1998" dated 26 February 1999