EHRM, 20-11-2018, nr. 12708/16

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

On 9 January 2015 the applicant arrived in the Netherlands where he applied for asylum. In his interviews with the immigration authorities — held on 11 January 2015, 18 February 2015 and 20 February 2015 — he stated that he had travelled by air from Khartoum —via Qatar and Athens — to Paris from where he had travelled by train to the Netherlands. When he entered the Netherlands, the applicant was travelling on his own Sudanese passport, issued 19 November 2014 and valid until 18 November 2019, containing a Greek Schengen visa valid from 25 December 2014 until 2 January 2015.

He further stated that he hailed from Khartoum North, that he was married and that his wife and their children as well as his parents had stayed behind in Sudan and that they lived together in one house. He had worked for an airline as a security agent, both at the airport as well as on flights when transporting valuables (cash, airline tickets etc.). By the end of 2012 he had been approached by the Sudanese National Intelligence and Security Service (‘the NISS’) and — without a previous security scan — requested to allow boxes to be taken on board flights. After having allowed this to happen about four times, he eventually refused to cooperate. This resulted in him being held for approximately three hours at the airport and threatened by NISS agents. The applicant's employer subsequently allowed him to work at the airline's head office and not at the airport. After a while the applicant had started to work on flights to South Sudan. One day, in mid-January 2013, when accompanying mail to South Sudan, NISS agents checked the mail the applicant was transporting. After about half an hour, the mail was returned to the applicant who then continued his journey. Some weeks later, in February 2013, he was to transport an amount of nearly 30,000 United States dollars (USD) from the airline's director in Khartoum to the director of the airline's branch office in Cairo. This money was destined for aeroplane maintenance. When awaiting boarding, the applicant was arrested by the NISS. The money was seized and his two work ID's were taken from him. He was questioned on the suspicion of having contacts with the Sudan People's Liberation Movement — North (‘SPLM—N’), an illegal opposition organisation. He had been ill-treated during questioning and was released in July 2013 but had to report daily to the NISS. He was fired from his work in August 2013. As from March 2014 he refused to report daily to the NISS and had gone into hiding with in-laws. With the aid of the neighbourhood Committee, the NISS raided his home several times. His father advised him to leave the country which, with the aid of a cousin, he had done. A travel agent had arranged a passport and a visa for him.

On 22 February 2015 the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) notified the applicant of his intention (voornemen) to reject the asylum application. On 24 February 2015 the applicant's lawyer submitted written comments (zienswijze) on the Deputy Minister's intended decision.

By a decision of 24 February 2015 the Deputy Minister rejected the asylum application. Noting that the applicant's passport had been examined and found authentic by the Netherlands Royal Constabulary (Koninklijke Marechaussee), the Deputy Minister accepted the applicant's stated identity, nationality and origin. Further noting the applicant's detailed statements about his arrest and detention, the Deputy Minister also accepted the applicant's asylum statement on those points. However, the Deputy Minister did not find that the applicant had demonstrated that he, if returned to Sudan, would risk being arrested again. The Deputy Minister did not find it established that the applicant would have been obliged to report daily to the authorities after his release, that he had failed to comply with previously and that, for this reason, he had gone into hiding. On these points the Deputy Minister took note of the applicant's summary statements about this obligation to report and found it odd that the applicant had gone into hiding with close relatives living in the same town without having encountered any problems whilst during this period his own house would have been raided three or four times by the authorities. It was further taken into account that the applicant had left Sudan legally. It seemed strange that, for a person who claims to be searched for by the authorities, it would be possible to apply to these same authorities for a passport and to pass passport control at the airport without being apprehended. On this point, the Deputy Minister noted that it appeared from the general country assessment report (algemeen ambtsbericht) on Sudan of 22 August 2013 that control at Khartoum airport is effective and that the names of all who wish to leave Sudan by airplane are recorded on a list by the airline companies concerned and that these lists are provided to and checked by the NISS.

By a judgment of 13 March 2015, the provisional-measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of The Hague, sitting in Groningen, accepted the applicant's appeal, quashed the decision of 24 February 2015 and ordered the Deputy Minister to take a fresh decision on the applicant's asylum application. The judge noted several descriptions contained in inter alia paragraph 41 of the official country report on Sudan of 22 August 2013 about the manner in which Sudanese nationals who return to Sudan are checked upon arrival and that rejected asylum-seekers may run into trouble if the Sudanese authorities are aware of their asylum application. In that light, the judge held that the premise used by the Deputy Minister, i.e. that for more than a year after having been released the applicant had not been arrested and detained and had been able to leave the country in December 2014, was insufficient for holding that, upon his arrival in Sudan, the applicant would pass through screening at the airport unhindered.

On 19 March 2015 the Deputy Minister filed a further appeal to the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). The applicant filed a cross-appeal (incidenteel hoger beroep) on 27 March 2015.

On 2 September 2015 the Administrative Jurisdiction Division rejected the applicant's cross-appeal. 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.

It accepted the further appeal filed by the Deputy Minister, quashed the impugned judgment and rejected the applicant's appeal against the decision of 24 February 2015. As to the further appeal of the Deputy Minister, it held as follows:

No further appeal lies against this ruling.

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 otherwise indicated 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, § 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 has not already been removed, 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 full and ex nunc evaluation is required 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, 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.

The Court has noted the reasons why the Deputy Minister and the Administrative Jurisdiction Division reached the conclusion that it had not been established that the applicant would risk being arrested and tortured anew in Sudan (see paragraphs 6–10 above). The Court has found no reason to doubt this conclusion. There is no concrete indication in the applicant's submissions indicating a negative interest in the applicant on the part of the authorities of Sudan, either at the time he left Sudan or currently. On this point the Court notes, bearing in mind that the applicant's parents, spouse and children have remained in Sudan, that it has not been argued, and it does not appear, that the Sundanese authorities have ever taken any concrete steps aimed at finding out the applicant's whereabouts after he applied for a passport and left the country.

The Court further 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