EHRM, 20-11-2018, nr. 36196/16

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

On 14 June 2010 the applicant arrived in the Netherlands where he applied for asylum, claiming fear of persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (‘the 1951 Refugee Convention’). On the next day the immigration authorities held a first interview (eerste gehoor) with the applicant about his identity, nationality and travel itinerary. The applicant stated among other things that he belonged to the Zaghawa tribe but did not speak the Zaghawa tribal language. He spoke only Arabic. His mother had died and, before leaving Sudan, he had lived near Geneina, the capital of West Darfur, with his father, stepmother and two stepsisters. He had travelled concealed in boats and trucks to the Netherlands. He did not have any travel or identity documents and his journey had lasted about one month.

On 12 October 2010 a further interview (nader gehoor) was held with the applicant about his reasons for seeking asylum. In this interview, the applicant stated that his father was active for the Al-Ade wa Al Musawat (Justice and Equality Movement (‘the JEM’)), an opposition organisation in Sudan. The applicant himself had never been politically active in Sudan, had never been arrested and had never experienced any serious problems related to his ethnic origin. He fled Sudan after having been involved in an incident in which a security official had been stabbed, who had sought to check goods, in which weapons were concealed, transported on a cart by the applicant and another young man. The applicant did not submit any documents or other items to substantiate his claim.

A written record of this further interview was drawn up and the applicant was given the opportunity to submit corrections and additions. On 15 November 2010 the applicant's lawyer informed the immigration authorities that the record had been discussed with the applicant and that there was no cause to file corrections or additions.

On 10 December 2010, accepting that he belonged to a non-Arab population group and hailed from Darfur, the applicant was granted temporary asylum under a country-specific protection policy for asylum seekers from Darfur.

On 11 September 2012 the Deputy Minister of Justice (Staatssecretaris van Justitie) informed the Lower House of Parliament (Tweede Kamer) that the Government had decided to end the this protection policy for asylum-seekers from Darfur as — according to an official country assessment report (ambtsbericht) on Sudan issued by the Ministry of Foreign Affairs in June 2012 — the general security situation in Darfur had improved. In taking this decision, the nature of violence in Sudan and the policy of other countries of the European Union had also been taken into account. The termination of the protection policy at issue entered into force on 6 November 2012.

As the ground for granting the applicant asylum had changed, his asylum statement was reviewed and, as doubt had arisen about his actual origin, he was invited on 12 April 2013 to take a language analysis test. Such a test is meant to provide an asylum seeker with an opportunity to substantiate his claim about his origin and ethnicity.

On 25 April 2013 a report was drawn up on the language analysis test carried out by the Office for Country Information and Language Analysis (Bureau Land en Taal), a specialised unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; ‘IND’) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie). The conclusion of this language analysis was that the applicant was unequivocally identified as originating from (‘eenduidig te herleiden tot’) the linguistic community in Sudan. The report further stated that, although it could be assumed, on the basis of his manner of speaking Arabic, that the applicant belonged to a non-Arab population group, nothing in his speech indicated a Darfur origin. Specific features of Arabic spoken in Darfur were absent in the applicant's manner of speaking Arabic. Given his poor knowledge about the Zaghawa (Zaghawa words and customs), it was further found improbable that the applicant belonged to this ethnic group. The report specified that the analyst was born and raised in Darfur and had a knowledge of both Sudanese Arabic as well as the Fur language at mother-tongue level. In addition he had a good command of English and standard Arabic.

On 21 June 2013 the Deputy Minister of Security and Justice notified the applicant of his intention (voornemen) to withdraw the applicant's asylum-based residence permit. Given the conclusion of the language analysis, the Deputy Minister found that the identifying data (identificerende gegevens) given by the applicant had been incorrect. Apparently the applicant did not in fact hail from Darfur. Had this been known, he would not have been granted asylum. The applicant was invited to submit written comments (zienswijze) on the Deputy Minister's intended decision but did not avail himself of this possibility.

By a decision of 17 September 2013 the Deputy Minister withdrew the applicant's asylum-based residence permit. The applicant filed an appeal.

In its judgment of 28 February 2014, following a hearing held on 24 January 2014 which was attended by the applicant who was assisted by counsel, the single-judge Chamber (enkelvoudige kamer) of the Regional Court (rechtbank) of The Hague sitting in 's‑Hertogenbosch rejected the applicant's appeal. Noting the manner in which the language analysis had been conducted, the Regional Court accepted the Deputy Minister's decision and underlying reasons for withdrawing the applicant's residence permit. Although possible, there is no indication in the case file that the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State.

On 27 October 2015 the applicant filed a fresh asylum application, submitting a number of documents, namely:

On the same day, after the applicant had been interviewed by immigration official on his repeat asylum application, the Deputy Minister of Security and Justice notified the applicant of his intention (voornemen) to declare the applicant's second asylum request inadmissible under the terms of section 30a § 1 (d) of the Aliens Act 2000 (Vreemdelingenwet 2000). Under this provision a fresh asylum application can be declared inadmissible when it is not based on new facts or findings that may be of relevance for the examination of the application (nova). The applicant was invited to submit written comments on the Deputy Minister's intended decision, which his lawyer did on 28 October 2015.

In his decision of 29 October 2015 the Deputy Minister declared the fresh asylum application inadmissible under section 30a § 1(d), considering that, although it appeared from the declaration of the Embassy of Sudan that the applicant was born and registered in West Darfur, this document contained no information about the duration of the applicant's stay in West Darfur after his birth nor about his ethnic origin. The same applied for the other documents. Consequently, these documents could not be regarded as nova. The Deputy Minister also rejected the applicant's arguments under Article 3 of the Convention.

On 17 November 2015, following a hearing held on 12 November 2015 which was attended by the applicant who was assisted by a lawyer, the single-judge Chamber of the Regional Court of The Hague rejected the applicant's appeal against the Deputy Minister's decision. Having noted the extracts of the birth and population register and the declaration of the Sudanese Embassy, it found that it had been established, that the applicant was of Sudanese origin and that he was born in West-Darfur. However, it did not appear from these document that the applicant had actually lived in West-Darfur and, if so, for how long. Accordingly, these documents could not be regarded as ‘nova’. Furthermore, the Regional Court held that the applicant had failed to establish that, if removed to Sudan, he would risk being called up for military service. It also held that, as it had not been established that the applicant hailed from West-Darfur, there was no reason to consider new facts of changed circumstance where it concerned the general security situation in West-Darfur. As to the applicant's reliance on A.F. v. France (no. 80086/13, 15 January 2015), the Regional Court noted that — unlike the situation in the applicant's case — the French Government had in that case failed to challenge the Darfur origin of the applicant in a convincing manner and that the situation in the A.F. case differed in essential parts from that of the applicant's.

The applicant's further appeal against this judgment was rejected on 29 December 2015 by the Administrative Jurisdiction Division. It held that under section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling.

On 23 May 2018 the applicant informed the Court that in the meantime he had filed a fresh asylum application which had not yet been determined. No information was provided about the basis of this new application or about the outcome of this procedure.

The admission, residence and expulsion of aliens are regulated by the Aliens Act 2000. Further rules are laid down in the Aliens Decree 2000 (Vreemdelingenbesluit 2000), the Regulation on Aliens 2000 (Voorschrift Vreemdelingen 2000) and the Aliens Act 2000 Implementation Guidelines (Vreemdelingencirculaire 2000). The General Administrative Law Act (Algemene Wet Bestuursrecht) applies to proceedings under the Aliens Act 2000, unless indicated otherwise in this Act.

Section 13 of the Aliens Act 2000 provides that an application for a residence permit shall be granted only if:

In August 2016, a joint report ‘Situation of Persons from Darfur, Southern Kordofan and Blue Nile in Khartoum’ was released by the Danish Immigration Service and UK Home Office on joint fact finding missions to Khartoum, Kampala and Nairobi conducted in March 2016. The report focuses on the situation of persons from Darfur and the Two Areas (Southern Kordofan and the Blue Nile State) in Khartoum, including treatment of such persons upon arrival at Khartoum International Airport, treatment by the authorities in Khartoum, prevalence of societal discrimination, and living conditions in Khartoum. Its executive summary reads:

According to the Swedish Migration Board Country Information Service (Lifos) report of 6 December 2016 on the security situation in Darfur and the situation for internally displaced persons in Khartoum, both the cultural affiliation and the skin colour of a person are of importance in Sudanese society. Reports from several initiated sources state that people are discriminated against in society because of their ethnicity. Which ethnic group a person belongs to affects the understanding of that person's political affiliation. Human rights activists, political opponents to the regime, leaders in civil society, students, lawyers and journalists risk intimidation from the authorities. They can be arrested and detained by the NISS without charge or trial. People from some non-Arab groups can be perceived as rebel affiliated and people from Darfur with a political profile, can be at risk also in Khartoum.

The United Kingdom Home Office Country Policy and Information Note ‘Sudan: Non-Arab Darfuris’, released in August 2017, states inter alia as follows:

The applicable general principles are set out in, inter alia, Saadi v. Italy ([GC], no. 37201/06, §§ 128-33, ECHR 2008); R.C. v. Sweden (cited above, §§ 48–51 with further references); F.G. v. Sweden [GC], no. 43611/11, §§ 117-27 with further references, 23 March 2016); J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 79–90 with further references, 23 August 2016); N.A. v. Switzerland (no. 50364/14, §§ 41–42 with further references, 30 May 2017); and A.I. v. Switzerland (no. 23378/15, §§ 48–49 with further references, 30 May 2017).

The issue before the Court is whether the applicant, upon return to his country of origin, would face a real risk of being tortured or subjected to inhuman or degrading treatment or punishment as prohibited by Article 3 of the Convention.

Since the applicant in the instant case has not already been deported, the material point in time for the assessment of the claimed Article 3 risk is that of the Court's consideration of the case (see Saadi, cited above, § 133). The Court will make a full and ex nunc evaluation where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken (see, for example, Maslov v. Austria [GC], no. 1638/03, §§ 87–95, ECHR 2008, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 215, 28 June 2011).

In examining this matter — and without prejudice to the currently pending asylum application in respect of which no further details have been provided by the applicant — the Court would reiterate its considerations in respect of the general situation in Sudan as set out in the Court's recent judgments of N.A. v. Switzerland (cited above, § 43) and A.I. v. Switzerland (cited above, § 50). In addition, on the basis of the materials before it, the Court finds that the general situation in Sudan, in particular in Khartoum, is not of such an extreme violent nature as to entail, on its own, that any removal to it of a Sudanese national would necessarily be in breach with the Convention. The Court therefore has to establish whether the applicant's personal situation is such that his return would contravene with Article 3 of the Convention.

Although it was accepted that the applicant is of non-Arab origin and that he was born in West Darfur, his claims of belonging to the Zaghawa tribe and of always having lived in West Darfur before he left Sudan were disbelieved by the domestic administrative and judicial authorities after an extensive investigation and on rational grounds that the Court has no reason to doubt. In this respect the Court notes that the Netherlands administrative and judicial authorities have given extensive reasons for their decision not to attach credence to the applicant's alleged life-long residence in Darfur and his belonging to the Zaghawa tribe, which claims lay at the heart of his asylum statement. The Court observes that the applicant's case was examined on the merits by the Deputy Minister, on whose behalf interviews were conducted with the applicant, and by the Regional Court, which held an oral hearing. Moreover, the Administrative Jurisdiction Division considered the applicant's further appeal but found no grounds to overturn the judgment of the Regional Court of The Hague. The Court lastly notes that the applicant was assisted by a lawyer throughout the proceedings.

In so far as the applicant claims a risk of treatment prohibited by Article 3 on account of his non-Arab ethnic origin, the Court observes — having regard to various recent international reports on the situation in the Khartoum region for persons having a non-Arab origin (see paragraphs 22 and 25–27 above) — that the situation for such persons is certainly not ideal and that they may risk falling victim to social discrimination. However, the Court finds that this situation cannot be regarded as being so harrowing that it must be concluded that people of non-Arab origin are at risk of persecution or serious harm in Khartoum, solely on the ground of their ethnicity. It must therefore be established whether any other risk factors are at stake.

The Court notes that the applicant has never been politically active in Sudan, has never been arrested and has never experienced any serious problems related to his ethnic origin (see paragraph 4 above). The alleged personal risk of being called up for military service has not been substantiated by the applicant. Furthermore, the Court has found no concrete indication in the contents of the case file indicating a negative interest of the authorities of Sudan in the applicant, either at the material time or currently. There is nothing indicating that these authorities have ever taken any concrete steps aimed at finding out the applicant's whereabouts.

Finally, the Court notes that, unlike the situation in the cases of N.A. v. Switzerland and A.I. v. Switzerland (both cited above), there is no evidence before the Court that the applicant would have been involved in any Sudanese political opposition activities or group abroad and for this reason would have to fear ill-treatment upon his return to Sudan.

In these circumstances, the Court cannot but conclude that applicant failed to adduce evidence capable of demonstrating that there are substantial grounds for believing that he, if removed to Sudan, would face a real risk being subjected to treatment in breach of Article 3 of the Convention.

It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 December 2018.

Fatoş Aracı

Deputy Registrar

Dmitry Dedov

President