J.E.D. v. The United Kingdom

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42225/98

by J.E.D.

against the United Kingdom

The European Court of Human Rights (Third Section) sitting on 2 February 1999 as a Chamber composed of

Mr J-P. Costa, President,

Sir Nicolas Bratza,

Mr L. Loucaides,

Mr P. Kūris,

Mr W. Fuhrmann,

Mrs H. S. Greve,

Mr K. Traja, Judges,

With Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 April 1998 by J.E.D. against the United Kingdom and registered on 17 July 1998 under file no. 42225/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a national of the Ivory Coast, born in 1968 in Agboville. He is represented before the Court by Jonathan & Chuks Solicitors, London.

The facts of the case as they have been submitted by the applicant and as deduced from the case file may be summarised as follows:

On 8 September 1994 the applicant arrived in London on a flight from Abidjan via Lisbon and claimed political asylum on the same day. When interviewed the applicant stated that he had been forced to flee the Ivory Coast on account of his involvement in the Federation Estudiante et Scolaire de Cote d'Ivoire (hereinafter "FESCI"), a student movement. He alleged that he had taken part in a demonstration on 11 May 1994. Following the demonstration, he and his friends were taken to a police station where they were beaten and forced to sign a statement that they would abandon their involvement in FESCI. On 14 May 1994 he was sent a summons by the police. According to the applicant he feared that he would be imprisoned and decided to flee the country because he believed his life was in danger. He managed to obtain a passport through the help of a friend in the police force.

By letter dated 14 February 1996 the Secretary of State notified the applicant that his asylum request had been refused on the grounds that he had not furnished any independent corroboration of either his involvement in FESCI or of his claim that he was wanted by the authorities. On 10 July 1997 the Special Adjudicator dismissed his appeal against the decision of the Secretary of State. Although satisfied that the applicant had been a student member of FESCI, the Special Adjudicator did not consider the evidence he adduced in support of his fear of persecution to be reliable and doubted the credibility of his asylum claim. On 26 August 1997 the Immigration Appeal Tribunal refused the applicant's application for leave to appeal against the Secretary of State's decision.

By letter dated 13 October 1997 the applicant renewed his application to the Secretary of State for political asylum. He relied on a number of letters and statements of third parties which in his view confirmed that he had a well-founded risk of persecution if removed to the Ivory Coast. By letter dated 16 November 1997 the Secretary of State informed the applicant that he was not prepared to treat the new representations as a fresh application for asylum. He drew the applicant's attention to the fact that the Government ban on FESCI had been lifted on 9 October 1997 and for that reason the materials which he had submitted in support of his renewed application no longer reflected the current situation in the Ivory Coast. No appeal lay against this decision of the Secretary of State. The Secretary of State confirmed this view on 21 January 1998 in a reply to a further request by the applicant for asylum.

The applicant sought leave to apply for judicial review of the Secretary of State's decision. He maintained that the Secretary of State had wrongly disregarded evidence which, he claimed, confirmed the dangers to which FESCI members were still exposed despite the Government's apparent conciliatory stance vis-à-vis the organisation. He further contended that he should have been permitted to appeal to an independent body against the decision of the Secretary of State and have his request examined as a fresh application for asylum.

On 19 February 1998 the High Court, following a hearing at which the applicant was represented by a lawyer, refused the applicant's application for leave to apply for judicial review.

The applicant's wife, also a national of the Ivory Coast, joined him in the United Kingdom on 13 September 1995 and a daughter was born to them on 27 July 1996. The applicant's wife and daughter are also subject to removal directions.

COMPLAINTS

The applicant complains that his removal to the Ivory Coast would violate his rights under Articles 2 and 3 of the Convention. He further maintains that, in breach of Article 6 of the Convention, he did not receive a fair hearing on his renewed asylum request before an independent adjudicator and that the refusal to grant him legal aid meant that he was inadequately represented in his judicial review application before the High Court. He also complains that the decision of the High Court refusing him leave to seek judicial review of the Secretary of State's decision violates, firstly, Article 14 in conjunction with Article 6 since it discriminated against him on the grounds of his colour and, secondly, Article 1 of Protocol No. 7. The applicant further contends that his removal to the Ivory Coast would be a violation of Article 10 of the Convention since he has been drawing the attention of the international community to the human rights abuses in the Ivory Coast and that his activism has brought him to the attention of the authorities of the latter country.

PROCEDURE

The application was introduced on 15 July 1998 and registered on 17 July 1998.

On 5 August 1998 the Commission decided not to accede to the applicant's request under Article 36 of its Rules of Procedure.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court, in accordance with the provisions of that Protocol.

THE LAW

1.   The applicant contends that the execution of the decision to remove him to the Ivory Coast would violate his rights under Articles 2 and 3 of the Convention. In support of his claim he has submitted to the Court documentation indicating the repressive nature of the regime in the Ivory Coast and the dangers which members of FESCI such as himself face at the hands of the authorities. He has also pointed to cases of nationals of the Ivory Coast having been granted asylum in the United Kingdom on account of their well-founded fear of persecution.

The Court recalls that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. Moreover, the right to political asylum is not contained in either the Convention or its Protocols. However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3 and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see, among many other authorities, the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74).

The Court recalls that its examination of the existence of a real risk of ill-treatment must necessarily be a rigorous one in view of the absolute character of Article 3 (see the above-mentioned Chahal judgment, p. 1859, § 96). It notes in this regard that the authorities had due regard to the arguments submitted by the applicant as well as to the past and current situation in the receiving country. It also observes that the Special Adjudicator found that the applicant's recollection of the events which led him to leave the Ivory Coast was unreliable and that he had serious reservations about the credibility of the applicant's account in general. Furthermore, the Secretary of State carefully evaluated the evidence which the applicant submitted in support of his renewed asylum request in the light of a documented improvement in the political situation in the Ivory Coast. The Court recalls in this respect that in application no. 32884/96 (decision of 5 June 1996, unpublished) account was also taken of political developments in the situation in the Ivory Coast in finding that the applicant in that case, an Ivorian national with a history of opposition to the regime, had not established that there were substantial grounds for believing that he would face a real risk of being subjected to treatment prohibited by Article 3 if expelled to that country.

Having regard to the above considerations and to its own careful examination of the arguments and materials submitted by the applicant, the Court considers that this applicant has not shown either that there are substantial grounds for believing that he would face a real risk of being subjected to treatment proscribed by Article 3 if removed to the Ivory Coast. It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2.   The applicant complains that he was unable to appeal against the decision of the Secretary of State dismissing his renewed asylum request, in breach of Article 6 § 1 of the Convention which provides as relevant:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law."

He also maintains that he was inadequately represented in the proceedings before the High Court since he was refused legal aid and could not afford the services of an experienced lawyer. He relies on Article 6 § 3 (c), which states:

"Everyone charged with a criminal offence has the following minimum rights:

...

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

..."

The applicant complains that both the Secretary of State and the High Court failed to take into account the reality of the political situation in the Ivory Coast and drew an erroneous conclusion on the democratic health of the country simply on the basis of the apparent rehabilitation of FESCI. He further alleges that other nationals of the Ivory Coast had been granted refugee status by the respondent State around the time of the Secretary of State's refusal of his asylum request and that his political activities since the time of his arrival exposed him to danger if he were to be removed to the Ivory Coast. In these circumstances he should have had a right to state his case before a Special Adjudicator and to contest the findings of the Secretary of State.

The Court does not consider it necessary in the instant case to examine whether the guarantees contained in Article 6 of the Convention apply to the impugned proceedings or whether the applicant was entitled under that Article to a court procedure to challenge the decision rejecting his renewed asylum request. It notes that in the instant case the applicant was able to seek judicial review of the Secretary of State's decision and that the High Court proceedings do not indicate any element of unfairness. It is to be observed that the applicant was legally represented in those proceedings and it is not for the Court to comment on the adequacy of his lawyer's presentation of his case before the High Court. These considerations lead it to conclude that the applicant's complaint under this head is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3.   The applicant invokes Article 14 of the Convention in conjunction with Article 6. The Court recalls that Article 14 does not enjoy any independent existence since it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the Convention and its Protocols (see the Gaygusuz v. Austria judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1141-42, §§ 36 and 42). Irrespective of the applicability or not of Article 6 to the impugned proceedings (see paragraph 2 above), the Court finds that the applicant has not substantiated his allegation that the decision of the High Court was discriminatory on account of his colour. For that reason his complaint must be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4.   The applicant relies on Article 1 of Protocol No. 7 to the Convention to contest, inter alia, the absence of an appeal against the decision of the Secretary of State refusing his renewed asylum request. The Court notes that the respondent State is not a Contracting Party to Protocol No. 7 to the Convention. This part of the application must accordingly be dismissed ratione personae pursuant to Article 35 § 3 of the Convention.

5.   The applicant submits that his expulsion to the Ivory Coast will violate his right to freedom of expression and to impart information on the human rights abuses in that country. He relies on Article 10 § 1 of the Convention, which states as relevant:

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers..."

The Court recalls that the Convention institutions have considered that Article 10 does not in itself grant a right of asylum or a right to stay in a given country. Deportation of an alien pursuant to immigration controls does not therefore constitute an interference with the rights guaranteed under Article 10. Furthermore, an alien's rights under Article 10 are independent of his or her right to stay in the country and do not protect this latter right. In the instant case the applicant has not, whilst in the jurisdiction of the United Kingdom, been subjected to any restrictions on his rights to impart information on the situation in the Ivory Coast. Nor has the applicant shown that the refusal of his asylum request and the decision to remove him in reality constituted a penalty imposed on him for having exercised his rights under Article 10 rather than a proper exercise of the discretionary power of deportation reserved to Contracting States.

For these reasons the Court finds that there is no indication of an interference with the applicant's rights under Article 10 § 1 of the Convention and this complaint is therefore to be dismissed as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé, Registrar

J-P. Costa, President