F v. United Kingdom - 36812/02 [2004] ECHR 719 (31 August 2004)

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The European Court of Human Rights (Fourth Section), sitting on 31 August 2004 as a Chamber composed of:

Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mrs E. Fura-Sandström,
Mr J. Borrego Borrego,
Mrs L. Mijović, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

The applicant, F, is a Libyan national, who was born in 1950 and is currently in prison in HMP Elmley. He is represented before the Court by Mr J. Luqmani, a solicitor practising in London.

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

In April 1977 the applicant arrived in the United Kingdom (“UK”) with a short-term visitor’s visa issued by the British Embassy in Libya. He did not claim asylum and was given leave to enter for one month, stating that he was looking at colleges with a view to studying English.

In May 1977 he was charged and convicted of theft and sentenced to 14 days’ imprisonment. In mid-1978 he was convicted of dishonest handling. Since he did not pay the fine, in April 1979 he was again arrested and committed to prison until June 1979.

In 1978 the applicant began a relationship with Ms R, a British citizen. She had a baby in April 1979.

In October 1979 a deportation order was served at the applicant’s last-known address. He had made no application to extend his leave to remain and was liable to deportation for overstaying. A further deportation order was signed in February 1980 and served on the applicant in May 1980, when he was arrested. Ms R was now pregnant with their second child.

On 27 May 1980 the Joint Council for the Welfare of Immigrants made detailed submissions to the Home Office on the applicant’s behalf, requesting that he be granted leave to remain on the basis of his relationship with Ms R.

The applicant was interviewed by an immigration official on 10 June 1980. He claimed that his older brother had been executed and that he had been arrested in consequence and had fled to the UK in fear of further ill-persecution. He appeared, however, unsure whether his brother had been a student or what he had studied. He claimed that his younger brother had avoided military service by jumping from a building and injuring himself. He also stated that he had no political affiliations at all in Libya and that, far from disagreeing with the regime in Libya, he had no quarrel with the Gaddafi regime. The Home Office official found the applicant’s account of his relationship with Ms R to be “fraught with discrepancies”.

In the course of a further interview on 17 July 1980 the applicant alleged that, while the Gaddafi regime had confiscated some of his father’s property and the applicant disliked it, he had never been involved in politics in Libya, belonged to any anti-government group or taken part in any demonstration. He again referred to his younger brother’s avoidance of military service, his older brother’s execution for anti-government activities, his own subsequent arrest and ill-treatment, and his release and flight from Libya. He had lied on entry to the UK, saying he was married, whereas he had divorced in 1977. He confirmed at the end of the interview that he had never received threats from the Libyan authorities. The report of the interview states that the applicant could offer no convincing reason why, if fear was the reason he left Libya, he had not applied for asylum in the UK earlier. However, the applicant added that his long absence from the country and avoidance of military service would increase the risk of his having a “bad time” if returned.

On 22 October 1980 the deportation order was revoked. The Home Office indicated in its letter of that date that the applicant “did not appear to be more exposed to risk than any other Libyan national as he appears to lack either the motivation or capacity to represent opposition to the regime.” However, given his long standing relationship with Ms R, he was given exceptional leave to remain until 28 October 1981, when his position would be reconsidered. On 3 November 1980 Ms R had their second child. Both children were placed for adoption on 3 March 1981. On 7 March 1981 the applicant and Ms R married. No further request for an extension of leave to remain was received at the Home Office, although the applicant claims that Ms R had said that she would post his request.

In January 1983 a full adoption order was granted in respect of the two children.

In February 1983 the police attempted to find the applicant. In August 1983 police enquiries revealed that Ms R and he were separated. In October 1983 the applicant was arrested on grounds of overstaying. In February 1984 he was convicted of overstaying and fined. The Crown Court upheld his conviction but the applicant was not recommended for deportation.

In May 1984 his solicitors made a late application for indefinite leave to remain on the basis of his marriage. While he and his wife were requested to attend on 20 November 1984 for interview with immigration officials, the applicant attended (with representation) but Ms R did not attend. The applicant explained that they were living separately and that Ms R had serious alcohol problems but that he was hopeful of a reconciliation.

On 7 February 1985 the Secretary of State refused the application, as there was no evidence that the marriage subsisted, and issued a deportation order. The applicant had overstayed and had not made any application for an extension. He had been in the United Kingdom for almost eight years, most of the time without any legal authority. His alleged fears of returning to Libya had already been examined and dismissed and there were no compassionate reasons militating against deportation.

The applicant appealed against this decision, arguing that he merited asylum. He was interviewed by an immigration officer on 7 May 1985 and made general submissions which were largely the same as those made on 17 July 1980. He confirmed that he had never been politically active, but stated that a magazine published in 1982 in the Middle East had indicated that he was wanted by the Libyan authorities. He implied that his younger brother’s injuries were not self-inflicted (as previously maintained) but had been inflicted by the Libyan authorities. He still hoped to reconcile with his wife, although they were not in regular contact.

On 16 October 1985 the Secretary of State rejected the appeal: it was considered that the applicant had not demonstrated a well-founded fear of persecution and that there were no compassionate grounds warranting the grant of leave to remain.

The applicant appealed to the Special Adjudicator (“SA”). He gave evidence about his older brother’s execution, the loss of his father’s wealth to Gaddafi, and his own departure from Libya in fear. He said that he had not contacted the Home Office when he arrived as he had not known about political asylum. He also referred to the magazine where his name allegedly appeared as someone wanted by the Gaddafi regime. Although the hearing was adjourned for three months to allow the magazine to be produced, the applicant could not produce it.

On 24 June 1987 the SA dismissed his appeal. He found that the 1980 deportation order had not been revoked because of the grant of asylum (as the applicant had claimed) but instead because of the applicant’s relationship with Ms R. He considered the various different versions of events presented by the applicant over the years and found him generally to be lacking in credibility. Moreover, apart from his unproven and tenuous connection with his brother’s political activities, the Libyan authorities would have no reason to target the applicant. It could not be accepted that all Libyans outside Libya would be pursued by the regime on their return. No compassionate circumstances appeared to exist.

On 13 October 1987 leave to appeal to the Immigration Appeal Tribunal (“IAT”) was granted. The applicant has not submitted the IAT decision, although later correspondence from the Secretary of State indicates that the IAT refused his appeal on 7 March 1988. However, the Secretary of State re-considered following further representations on the applicant’s behalf, and on 3 March 1989 exercised his discretion to grant indefinite leave to remain on the basis of the applicant’s marriage.

On 27 April 1992 the applicant was convicted of rape and assault occasioning actual bodily harm on an elderly neighbour. In finding that there were grave and aggravating features to the case, the trial judge sentenced him to 15 years’ imprisonment. No deportation order was made. His sentence was reduced to 13 years on appeal.

On 5 March 1993 the Secretary of State, finding that the applicant’s continued presence in the UK was not conducive to the public good, decided to deport him and to issue removal directions.

The applicant appealed against the deportation order to the IAT on the basis of his good character (he stated that “since my arrival I have been of good character and adhered to the laws of the land”), his responsibility to his children, his professional affairs in the UK, the previous grant of leave to remain and his pending appeal against sentence. He challenged the removal directions on the basis that he had a fear of persecution: he had fled from Libya as he had been politically involved, he had been allowed to enter the UK to seek asylum, he was still campaigning for asylum, he was still regarded as a subversive in Libya and his time in Europe would be badly regarded.

On 3 September 1993 his appeal to the IAT was rejected. He was found to be “totally lacking in credibility” and it was not believed that he had “the slightest interest in politics in Libya or here”. It was found that the two brothers with whom the applicant remained in contact worked for the Libyan Government and that his older brother had been executed for fraud rather than any political activity. It was further noted that the applicant had a large family in Libya and that he had been convicted of a horrific offence in the UK for which he had not shown the slightest remorse. It was true that the Libyan regime was unpredictable and that any Libyan having spent a long period in Europe was likely to come under some scrutiny. However, on balance, deportation was the right course.

A deportation order was made on 7 March 1994. At the expiry of the applicant’s prison sentence, fresh removal directions were set by the Secretary of State. The applicant’s representatives appealed, invoking Articles 3, 5 and 6 of the Convention.

On 26 September 2000 the Secretary of State rejected the application. He considered the applicant’s record in the UK to have been “quite appalling, showing complete contempt for both immigration and criminal law”. The applicant had formed remarkably few ties with the UK and his claim to asylum had been considered and rejected on a number of occasions by the Secretary of State, the SA and the IAT. There were no substantial grounds to believe that the applicant would be ill-treated contrary to Article 3 of the Convention. On 11 January 2001 the Secretary of State confirmed his decision to deport. The applicant appealed to the SA on 7 February 2001.

Following a hearing on 27 March 2001, by a decision dated 22 May 2001, the SA rejected the appeal. The applicant’s credibility had previously been found lacking, a finding confirmed by his answers to questions before the SA. In particular, the SA found it significant that the applicant relied before him on the suggestion that, if returned to Libya, he would tell the Libyan authorities that he had left because he was an opponent of the regime - the SA observed that “this suggestion beggars belief in view of the previous evidence”. There was no evidence to suggest that the Libyan authorities were aware or would become aware of the applicant’s criminal record or that he would be at risk of double jeopardy, other sanctions or treatment in breach of Article 3. There was no evidence that he would be prejudiced if the authorities discovered that he was a failed asylum seeker and there was no evidence that ill-treatment would result from any discovery that he had failed to complete his military service. Even if Articles 5 and 6 had extra-territorial effect, his brief detention on return would not breach Article 5 and there was no evidence to suggest that he faced criminal, political or other sanctions in Libya.

The applicant applied for leave to appeal solely on the basis of the Bulletin of the Home Office Country and Policy Unit (“CIPU”) dated 11 May 2001 (see the “Domestic Law and Practice” section below). Leave to appeal was granted on 19 June 2001. The IAT also had before it two letters from the Foreign and Commonwealth Office (Near East and North Africa department) dated 18 January and 15 April 2002, which provided an update on the position concerning the return of failed asylum seekers to Libya (see below).

On 10 May 2002 the IAT dismissed the appeal. Although the history of the matter was “a truly shocking one, as much for the sloth and lack of resolution displayed by the Home Office in the past as for [the applicant’s] own downright wickedness”, the IAT noted that it had to decide whether the applicant’s return to Libya brought with it a real risk. The IAT found as follows:

“We have to say that there is nothing whatsoever in this case, apart from the existence of the [CIPU bulletin], to suggest that [the applicant] would face any real risk of persecution or ill-treatment on return. The policy itself is not a blanket one, and allows for consideration of individual cases by a senior caseworker, which has been done here, resulting in the unusually coherent refusal letters of 26 September 2000 and 11 January 2001. There is nothing to suggest that, if the loathsome crime the [applicant] committed here became known to the Libyan authorities, he would face any form of double jeopardy for it there. Nor is there anything to suggest he would be regarded by them as any kind of political opponent: if he declared himself as such, as he had threatened, there is nothing to show that he would face any real risk of being taken seriously. The adjudicator was clearly entitled to reach the view he did, and we should have done the same ourselves.”

On 1 July 2002 the IAT refused leave to appeal to the Court of Appeal. His renewed leave application (under Article 3 and in relation to the CIPU Bulletin only) to a single judge of that Court was rejected on 19 August 2002.

His application to the full Court of Appeal was dismissed after a hearing on 2 October 2002, the Court of Appeal finding as follows:

“What [the applicant’s representative] says about the present applicant is that if the applicant is interrogated by the [Libyan] security authorities, as the CIPU bulletin says he will be, there is, if not a likelihood, at least a risk that they will elicit from him the fact that many years ago he sought and was refused asylum in this country. This seems to me to be a possibility so remote as not to constitute an appreciable risk at all. The history of the applicant in this country is littered with good reasons for his removal, any one of which will intelligibly explain his enforced reappearance in Libya 25 years after his first arrival in this country. The immediate cause of his removal, and indeed the only active cause of his removal because of the extraordinary good fortune which he has previously enjoyed, is his deportation for the commission of a crime for which he has served a long punitive term. There is no reason why any other documentation should accompany him and every reason why the notice of deportation can accompany him and provide a perfectly intelligible explanation of his removal. If he wishes he can also draw attention to the fact that, but for the commission of that crime, he would have continued to be the beneficiary of indefinite leave to remain, of which there is also, no doubt, documentary evidence in his or his lawyer’s hands.

In those circumstances, there is nothing in the documentation to suggest that as a deported criminal the applicant faces any special risk of maltreatment. ...”

B. Relevant domestic law and practice together with other relevant documents

1. The Bulletins of the Home Office Country Information and Policy Unit (“CIPU”)

This document was entitled “Enforced Removal of Failed Asylum Seekers” and, in so far as relevant, read as follows:

1. In April 2000 Amnesty International made representations to us in the specific case of a failed Libyan asylum seeker where we had enforced his removal to Libya. It was said that this individual was arrested and imprisoned on return to Libya. A temporary hold was placed on further removals whilst we made further enquiries. Amnesty International Canada also produced a report last year in which they said that, in addition to being detained, several returned asylum seekers have been subjected to serious human rights violations, including torture.

2. On the basis of the information from Amnesty International, UNHCR urged caution in returning failed asylum seekers to Libya. They also point to an incident in March last year concerning seven Libyan nationals, who were extradited from Jordan to Libya, at least 3 of whom were killed on arrival at Tripoli airport.

3. The Foreign and Commonwealth Office advised that: any Libyans returning to that country after an absence of six months or more are subject to an interrogation by the Libyan security authorities. Failed asylum seekers are routinely imprisoned by administrative (as opposed to judicial) order for ‘having shown disloyalty to the state’.

4. In the light of this information we do not believe that we can at present safely enforce removals of failed asylum seekers to Libya. Any representation made under Article 3 of the Human Rights Act against the removal to Libya of a refused asylum applicant, and based on information currently available in the public domain is likely to succeed. The Foreign and Commonwealth Office has said that they do not expect a significant change in the human rights situation in Libya within the next twelve months.

5. As a consequence of the above it has been decided that a limited exceptional leave policy for failed asylum seekers from Libya will be introduced as follows:

a. refused Libyan asylum seekers to be granted 6 months [exceptional leave to remain].

b. senior case workers to submit, to the Minister, advice on individual cases involving applicants who have been convicted of a serious crime and those subject to a recommendation to deport by the courts.

c. there will also be close, ongoing monitoring of the situation, to facilitate a review of this policy in twelve months or sooner if new information becomes available on the safety of return.”

1.1. This bulletin provides caseworkers with guidance on dealing with Libyan asylum claims in the light of the announcement made by the Home Secretary on 7 October 2002 regarding, inter alia, the use of Exceptional Leave to Remain in connection with unsuccessful asylum applications. This bulletin is publicly disclosable.

2.1. In the past country specific ELR policies have been introduced where the general humanitarian situation would normally preclude removal. What this has meant in practice is that where asylum is refused, ELR has been granted routinely (subject to security/criminal considerations) without the particular circumstances of the individual’s case being examined. The Home Secretary has announced an end to these country specific ELR policies and that in future all cases will be decided on an entirely individual basis.

2.2. Libya has been the subject of a country specific ELR policy that was introduced in April 2001 based on concerns about the safety of returning failed asylum seekers. In the light of the Home Secretary’s announcement, that policy has now ended.

2.3. In future asylum caseworkers should - as with all other nationalities - consider in all Libyan cases where refugee status is refused whether it is appropriate in the individual circumstances of the case to grant exceptional leave either as a result of our obligations under the ECHR or as a result of other compelling, compassionate or humanitarian reasons.

2.4. If the circumstances of an individual case justify it, exceptional leave to remain should be granted. In cases where asylum has been refused, and exceptional leave has not been granted, appropriate enforcement action will be considered.

2.5. The latest available country of origin information on Libya is contained in Libya Bulletin 1/2001 issued on 11 May 2001. CIPU are in the process of preparing updated country of origin information and this will be issued shortly. In the meantime caseworkers and presenting officers will wish to have the two documents attached to this Bulletin:

Annex A: a letter from FCO dated 15 April 2002 which addresses the issue of the treatment of returnees to Libya

Annex B: a report of a Swedish Migration Board fact-finding mission to Libya conducted in May/June 2002.”

“This Bulletin should be read in conjunction with the CIPU Bulletin of 7 October 2002, which provides caseworkers with guidance on dealing with Libyan asylum claims. The guidance below updates the current casework directions on the return of failed asylum seekers to Libya. It replaces the previous directions set out in the CIPU Bulletin of 1 May 2001, which is now superseded by this bulletin and by the CIPU Bulletin of 7 October 2002.

“In April 2000 Amnesty International made representations to us in the case of a failed Libyan asylum seeker where we had enforced his removal to Libya. It was said that this individual was arrested and imprisoned on return to Libya. A temporary hold was placed on further removals whilst we made further enquiries. Amnesty International Canada also produced a report last year in which they said that, in addition to being detained, several returned asylum seekers have been subjected to serious human rights violations, including torture. The Foreign and Commonwealth office advised at that time that any Libyans returning to that country after an absence of six months or more are subject to an interrogation by the Libyan authorities.

On the basis of the information from Amnesty International, UNHCR urged caution in returning failed asylum seekers to Libya. They also pointed to an incident in March 2000 concerning 7 Libyan nationals, who were extradited from Jordan to Libya, at least 3 of whom were killed on arrival at Tripoli airport.

In the light of this information we took the view that we could not safely enforce removals of failed asylum seekers to Libya. A limited exceptional leave [to remain] policy was instigated at that time. That has been superseded by the instructions in the CIPU Bulletin of 7 October 2002”

“The suspension of removals of failed asylum seekers to Libya is still in force. However it appears from the most recent advice from the Foreign and Commonwealth Office and the Country Report issued by the Swedish Immigration authorities (both attached to the CIPU Bulletin of 7 October 2002) that the situation has moved on. We are trying to obtain further views and information and will issue these as soon as possible.”

The summary of this bulletin, headed “Country Report by the Dutch Immigration Authorities”, provided as follows:

“This bulletin circulates a country report on Libya by the Dutch immigration authorities.

The attached report at Annex (Home Office translation) has been prepared by the Dutch Immigration Service and published on the website of the Ministry of Foreign Affairs of the Netherlands.

Libyan law prohibits opposition to the present regime. The human rights situation leaves much to be desired.

The Libyan authorities ban international and local human rights organisations. The UNHCR office in Tripoli does not carry out any duties in respect of returning Libyan asylum seekers. The Libyan authorities have a co-operative attitude towards UNHCR. Amnesty International has raised a number of human rights concerns about the treatment of Libyans, including returned rejected asylum seekers.

Internal opposition to the present regime has often been religiously inspired and has occurred above all in Cyrenaica (north-east Libya)

Opposition groups abroad (mostly located in Egypt and the UK) do not seem to form a united front.

In the past opponents of the regime have been executed, including by public hanging. There is no recent information about the enforcement of the death penalty. The last officially known execution took place in 1997. Two leaders of the banned Muslim Brotherhood arrested in 1998 were sentenced to death in February 2002, but the sentences were not carried out.

Following the lifting of sanctions against Libya in June 1999 and the resumption of air flights the return of rejected asylum seekers is more practically possible.

In 2000 a number of incidents occurred where rejected asylum seekers returned from various countries received adverse treatment from the authorities. In March 2000 3 members of a group of 7 deported from Jordan were killed on arrival at Tripoli airport.

Libyans who have been abroad for longer periods (not specified) are liable to be questioned by the Libyan authorities on return. This applies to all Libyans, not just rejected asylum seekers.

Rejected asylum seekers are likely to be held for a few days on return. Rejected asylum seekers who are returned under escort are certain of arrest, temporary detention and interview. It may also happen that rejected asylum seekers are just interviewed briefly. As far as is known this practice has no repercussions. Cases are known of removed rejected asylum seekers who since their forced return have resumed living in Libya unhindered.

There is an essential difference between the treatment of people suspected of opposition activities in or outside Libya and people who are not suspected of these. Suspicion of opposition activities is enough for longer detention and sentencing. Association with an opponent of the government is sufficient excuse to detain and interview. If a rejected asylum seeker is detained on return to Libya maltreatment or torture cannot be ruled out.

Other countries policies The UK (140), Germany (116) and Switzerland (about 100) had most asylum applications in 2001. Nine rejected asylum seekers were removed from Germany in 2000, five in 2001 and two in the first half of 2002. The German authorities examine each case carefully and do not return people originating from eastern Libya. Over 2001 and 2002 two rejected asylum seekers were removed from Switzerland. Subject to credibility most applications in Switzerland are approved. Of the other countries surveyed none had specific policies on Libya. The numbers of cases were very small. In 2001 the Netherlands expelled 38 Libyans, 16 of whom were rejected asylum seekers and 22 non-asylum.

UNHCR In October 2000 UNHCR took the attitude that care should be used in returning rejected asylum seekers to Libya. Asked about its present standpoint, UNHCR said it was engaged in working out its stance.”

This bulletin, headed “Removal of Failed Asylum Seekers to Libya”, stated as follows:

“This bulletin sets out the revised policy about return of rejected asylum seekers to Libya.

In the light of advice from the Foreign and Commonwealth Office, and information from other European countries who have produced country reports and carried out some enforced returns to Libya in recent months returns, it is believed that there is no longer a justification for the country policy first issued in the (now defunct) CIPU Bulletin of 11 May 2001.

Asylum applications from Libyan nationals should be carefully considered in the light of the country information recently issued to caseworkers. This includes standard reference, human rights and other relevant reports.

CIPU Bulletin dated 7 October 2002. This bulletin notified the decision to end the country specific Exceptional Leave policy in respect of unsuccessful Libyan asylum seekers. It also circulated advice from the Foreign and Commonwealth office (Letter dated 15 April 2002) and a report of a Swedish Migration Board fact-finding mission to Libya conducted in May/June 2002.

CIPU Bulletin dated 25 March 2003 circulating a country report of 20 November 2002 by the Netherlands Department of Asylum and Migration Affairs - General official report on Libya / return

Other previous CIPU Bulletins including those of 6 December 2002 and 11 May 2001 are superseded by this Bulletin.”

Early in 2004 the CIPU issued a further bulletin on Libya, which was confined to listing source material (and providing electronic links to such material) for caseworkers to consult when considering asylum applications. There was no accompanying Country Report offering commentary on the source material, opinion or policy, since Country Reports are currently compiled only for the top 35 asylum-producing countries, of which Libya is not one.

This letter was from the Near East and North Africa Department (“NENAD”) of the FCO to the CIPU and read as follows:

“1. You requested an assessment of the current situation in Libya and the authorities’ likely attitude towards Libyan nationals deported from the United Kingdom. I received a preliminary reply to this question in November, the burden of which was that the people concerned would not face serious difficulties in Libya, provided they had not been involved in anti-regime activities. This reply was by no means definitive.

2. [The United Kingdom Ambassador] had the opportunity to raise this issue with a senior member of the Libyan Government. He read to him the standard list of assurances that the Home Office seeks in such cases from the receiving country. He also explained two cases in outline. The Libyan official said that the two names were not ones he recognised as having any political significance. He said that they seemed to be economic migrants who had committed crimes, and not people of any significance to the Libyan security authorities. On that basis, they would not face difficulties; indeed, they might not even be questioned.

3. These comments are consistent with the information Tripoli has obtained from their Legal Adviser. It is impossible to be one hundred per cent confident of the assurances we need, given the presence in Libya of numerous security agencies. Once a Libyan is returned following deportation, we lose any ability to protect them. Travel documents might well highlight them for special attention by the Internal Security Authorities. Moreover, there may be something in their record that turns up when they research the names of deportees.

4. That apart, [the United Kingdom Ambassador in] Tripoli has confidence in his contact’s judgement. On balance, therefore, he believes it should be possible to recommend to Home Office Ministers that serious ill-treatment is unlikely and that the men, in these cases, could be returned without a breach of the European Convention.”

One of the individuals referred to in the second paragraph of that letter was the applicant in the case of A v. the Secretary of State for the Home Department (cited below).

The NENAD of the FCO provided, by way of this letter to the CIPU, a further assessment of the position of returnees. The letter is almost identical to that of 18 January 2002 except that it added a preliminary sentence to the second paragraph which reads:

“The Libyan authorities appear to take a slightly more relaxed view than they have done previously.”

It also excluded the reference to the two specific cases to which the letter of January had referred and its last sentence was more general than that of the 18 January 2002:

“On balance, therefore, he believes it should be possible to return certain categories of migrant without a breach of the European Convention.”

This letter was written by the FCO in response to queries from the solicitors for a Libyan asylum seeker (the applicant in the case of A v. the Secretary of State for the Home Department, see below), referred to the sources of the information in the FCO’s letter of 18 January 2002. A general enquiry had been made by the FCO to the Deputy Head of Mission in Tripoli who replied, having consulted the Honorary Legal Advisor to the Embassy in Tripoli, that deportees would be questioned on return to ascertain whether:

“(i) they had acted against the Libyan Government while overseas by being a member of an opposition grouping or other such political activity and (ii) as to why they were arrested in the UK. On the whole this would just be routine questioning and if there were no political context they would be quickly released. It was the [Honorary Legal Adviser’s] considered opinion that a deportee would not face problems on their [sic] return if they had not been involved in political activities– even if they had claimed political asylum, as long as the individual were able to explain the reason behind any claim was based on economic or other [ie. non-political] grounds. The [Deputy Head of Mission] added that the embassy was aware of Libyan asylum seekers who were at large in Libya.”

A second but more specific enquiry had also been made of the Ambassador in Tripoli. The person to whom the Ambassador had spoken was described as a “very senior member” of the Libyan Government, but it was said that it would be contrary to the public interest and diplomatic relations to identify that person in the relevant Immigration Appeal Tribunal (“IAT”) proceedings. The discussion had taken place in Tripoli. The reason for the Ambassador’s confidence in that Libyan official was that the Ambassador, a highly experienced diplomat, had had numerous dealings with him and trusted his judgment. Both of the individuals whose circumstances were outlined to this official had served prison sentences and had been recommended for deportation. The list of assurances which had been sought by the Ambassador included assurances that no-one should be detained unless there was due cause, or harassed or subjected to ill-treatment by the authorities or ill-treated in detention. If detained, they should have a hearing which would be fair and public, before independent and impartial judiciary in a civilian court. Arrangements would be made for access by the British Government and independent medical personnel during any term of imprisonment.

Prompted by a sharp increase in Libyan nationals seeking asylum in Sweden, the Swedish Migration Board conducted a fact-finding trip to Libya between 31 May and 11 June 2002. Its findings were contained in its report dated 10 July 2002.

“To ensure both the country’s and Gaddafi’s security, Libya has a highly active intelligence service that operates both in and outside the country. Libya’s intelligence service comprises several individually independent agencies, which also monitor each other. It is claimed that many Libyans constantly feel that they may be under surveillance, which causes a certain amount of fear and caution. The intelligence services’ procedures are not known, but probably take a wide variety of forms, e.g. physical surveillance, compulsory reporting for the various officials, monitoring through communication technology, mass media monitoring etc. It is well known that civil servants are constantly shifted within the administrations and executive departments where they work, to prevent strong, opposing alliances from forming that could threaten the regime. According to experts, this reshuffling of staff strongly contributes to bureaucracy and administrative inefficiency.

Evidence strongly suggests a recent restructuring of the intelligence services’ methods. They now seem to be less generalised, instead focusing more directly on clearly defined opposition groups and individuals. This change may be a result of the regime wishing to project a more open and less repressive image, or possibly feeling less under threat at present.”

“Fairly strict checks are also performed on individual travellers arriving in Libya. The control routines do not appear to be related to the duration and purpose of the visit abroad (at least not at present). We were told that a blacklist is kept. Although it is difficult for outsiders to judge whether this is true, the possibility cannot be ruled out.”

“The Libyan authorities can issue documents to facilitate onward travel or return to Libya. For instance, it is known that Libyan authorities on Malta provide Libyans with at least provisional travel documents to facilitate their journey. It is not known whether the Libyan authorities have special criteria for travel documents in order for Libyans to be allowed to enter or return to their native country. It is less likely that the possibility of deportation depends on the possession of certain documents. If a Libyan returns without any documents whatsoever, it is natural that the Libyan authorities should want to question him to find out the reason for this, and especially to ascertain whether he is actually a Libyan citizen. ...

When return or deportation is necessary in a particular case, the Libyan should preferably be given the opportunity to contact the Libyan authorities to gain the necessary documents for re-entry to Libya. Failing this, deportation without documents should also be an option.

There is strong evidence that almost all Libyans have passports and other documents, and voluntarily show them ‘in a tight position’ (this has been noted both by the Swedish Migration Board and in certain other countries in several cases where deportation was necessary). In the case of deportation, escorting deportees all the way to Libyan territory should be avoided as far as possible, and the Libyan should thus normally make the final part of the journey alone.”

“There has been a noticeable liberalisation and softening of Libyan society in the last three to four years, and this trend is still in progress. Possible contributing factors include Libya’s strong desire to resolve the Lockerbie issue and the related sanction policies, and the events of September 11 in the United States.

It has become significantly easier for Libyans to travel abroad. It is now much easier to obtain passports, and exit permits are no longer required. Many EU countries appear to have very generous visa policies with regard to Libyans.

The Libyan authorities’ attitude and procedures do not appear to be linked to the duration or purpose of the stay abroad.

An application for asylum abroad will not, in itself, put a Libyan at risk on returning to Libya.

Libya has a sophisticated and active intelligence service, both inside and outside the country.

The government is vigilant towards opposition against the regime, and particularly towards Muslim fundamentalism. The intelligence services are increasingly favouring an individual rather than a general approach to political security issues.

Political opposition and Islamic fundamentalism appear not to exist in Libya, or are at least marginalised. There are several minor opposition groups outside Libya, particularly in the UK and Egypt. However, this opposition is divided, and does not currently appear to pose a threat to the regime. ...”

As to the forced repatriation of Libyans and their treatment on return, the report stated as follows:

“At least 31 Libyan nationals - men, women and children - who had been detained in Saudi Arabia without charge or trial for more than two years following the November 1995 bombing of the Saudi Arabian National Guard training centre in Riyadh were forcibly returned to Libya in April or May (see Saudi Arabia entry). They were arrested following their arrival in Libya and their whereabouts at the end of the year were not known. ...

A Libyan family ... were forcibly returned to Libya by Saudi Arabia in May or June allegedly because of ... opposition activities ... . The family had been granted refugee status in the UK in November 1997 and travelled to Saudi Arabia in January for the pilgrimage. [Some members] were released in Libya but [one family member] continued to be held, reportedly without charge or trial, at the end of the year.”

Following the suspension of sanctions against Libya in April 1999, refugees and asylum-seekers were at increasing risk of being forcibly returned to Libya. Some of those forcibly returned were detained and there were reports that some had been the victims of serious human rights violations, including torture.

In February, eight Libyan nationals suspected of being Islamic sympathisers were forcibly returned to Libya by the Jordanian authorities.

In July, four Libyans suspected of being Islamic sympathisers were forcibly returned from Pakistan. [Two of their] applications for asylum were still under consideration when they were deported, while the other two men were reportedly residing and working legally in Pakistan. Their whereabouts following their return to Libya were unknown.”

There was no specific mention of forced returns of Libyan nationals or of the treatment on return of failed asylum seekers.

In response to the present applicant’s solicitor’s query, Amnesty International stated:

“Thank you for your query about Amnesty International’s current position on the return of failed asylum seekers to Libya.

Amnesty International continues to be extremely concerned about the fate of rejected asylum seekers who have been returned to Libya following the establishment of air links.

Amnesty International has followed up cases of forcible return to Libya since the mid-90s. In all cases followed by Amnesty International we either learned that the returned asylum seeker had been detained upon return and remains in detention or we were not able to receive any information. In several cases Amnesty International has received confirmed information that the forcibly returned persons were subjected to serious human rights violations including torture.

In March 2000, Amnesty International expressed its concern about the decision by the Jordanian authorities to return eight Libyan nationals to Libya. The people concerned had been detained in Jordan on suspicion of being sympathisers of Islamist groups. In April 2000 it was widely reported that three of the men had been killed after their return. Amnesty I requested information from the Libyan authorities concerning the alleged killings and detention, but received no response.

In the case of the asylum seeker Mustfa Khalifa Abdulrazzaq, who was rejected in the UK and forcibly returned in April 2000, Amnesty International has obtained information that he was detained following his return to Libya. Amnesty International has expressed concern about his safety in communications to [UNHCR] (in Geneva) and to the British authorities – and has requested to be informed about any findings concerning his whereabouts. We have, to date, received no such information.

It continues to be true that follow up of the situation of forcibly returned persons in Libya is very difficult. There are no independent human rights organisations existent in Libya, who could monitor cases of returnees. A climate of fear in Libya continues to prevent victims of human rights violations or their relatives from communicating information to the outside world, as they would be at risk of retaliation by the authorities.

In 2002 approximately 65 political prisoners, including five prisoners of conscience detained since 1973, were released. What can be considered as a positive step needs to be considered with caution: their release was long overdue, and the general situation remains dramatic. According to Amnesty International’s information, hundreds of other political prisoners reportedly remain in prison.

In recent years, families of dozens of prisoners were informed by the authorities that their relatives died in prison, but were not told the date or cause of death. Several cases of ‘disappearance’ have still not been clarified. In 2002, two possible prisoners of conscience were sentenced to death. Reports of torture continued to be received: no investigations are known to have been carried out. Legislation remains in force criminalising non-violent political activities and providing for unfair trials.

Amnesty International is concern that information about the history of cases of asylum seekers and overstayers in the UK is readily available to the Libyan authorities. In the eyes of the Libyan Government, making a refugee claim is an act of opposition, and any government opponent is at risk of being brutally punished.”

The most recent State Department Report on human rights’ practices in Libya was published on 25 February 2004. The report observes, in the introductory paragraphs, that:

“The country maintained an extensive security apparatus, consisting of several elite military units, including Qadhafi’s personal bodyguards, local Revolutionary Committees, People’s Committees, and ‘Purification’ Committees. The result was a multilayered, pervasive surveillance system that monitored and controlled the activities of individuals. The various security forces committed numerous serious human rights abuses. ...

The Government’s human rights record remained poor, and it continued to commit numerous, serious abuses. Citizens did not have the right to change their government. Qadhafi used summary judicial proceedings to suppress domestic opposition. Security forces tortured prisoners during interrogations and as punishment. Prison conditions were poor. Security forces arbitrarily arrested and detained persons, and many prisoners were held incommunicado. Many political detainees were held for years without charge or trial. The Government controlled the judiciary, and citizens did not have the right to a fair public trial or to be represented by legal counsel. The Government infringed on citizens’ privacy rights, and citizens did not have the right to be secure in their homes or persons, or to own private property. The Government restricted freedom of speech, press, assembly, association, and religion. The Government imposed some limits on freedom of movement. The Government prohibited the establishment of independent human rights organizations and of free trade unions. ...”

“The Government did not impose forced exile as a form of punishment, and it continued to encourage citizen dissidents abroad to return, promising to ensure their safety. It was unclear whether such promises were honored. During the year, the Government continued to repatriate family members of suspected citizens who were members of the terrorist group al-Qa’ida. Students studying abroad have been interrogated upon their return”.

6. Decision of the UN Committee against Torture in the case of F.F.Z. v. Denmark (Communication No. 180(2001) (2003) 10 IHRR 105)

The case concerned the proposed deportation to Libya of a Libyan national and alleged supporter of the Islamic movement Al-Jama’a al’Islamiya Al’Libya from Eastern Libya following the refusal of F.F.Z.’s asylum application by the Danish authorities. The Committee concluded:

“The State Party has pointed out that none of the three arrests to which the complainant was subjected, were related to his political activities. It also submits that the complainant would not have been able to have his passport stamped on his departure from Libya if he had been exposed to persecution at that time and that the Amnesty International medical report provides no objective indication that he was subjected to gross outrages. Furthermore, the events that motivated the author’s departure date far back in time and his family has not been sought or harassed on account of the complainant since his brother’s release in 1996. The Committee considers, on the basis of the information provided, that the political activities that the complainant claims to have carried out, are not of such a nature as to conclude that he runs a real risk of being tortured upon his return. Indeed, he does not seem to be particularly exposed to persecution by the Libyan authorities. The Danish Ministry of Foreign Affairs has stated that Libyan citizens who return to Libya more than a year after their legal or illegal departure are frequently detained and questioned, but then released after some hours.

On the basis of the above considerations, the Committee considers that the complainant has not proved his claim that there are substantial grounds to support his claim that he would risk torture if returned to Libya.”

7. Decision of the IAT of 21 March 2003 in the case of A v. Secretary of State for the Home Department [2002] UKIAT 07355

The applicant in that case was a Libyan national convicted of a serious sexual offence in the United Kingdom. He was granted asylum in 1994 but was subsequently convicted of another serious sexual offence, following which he was served with a deportation order. The Secretary of State had formed the view that the conditions prevailing at the time in Libya allowed his removal. The IAT rejected A’s appeal, finding that although asylum had been granted because it was feared that the Libyan authorities would impute opposition to the regime from the appellant’s failure to return earlier:

“However, there is no reason to suppose now that that is how the Libyan authorities would see him. He would return as someone deported for having committed a serious crime, which would account for the fact of his return. He would have a ready and truthful account of why he had stayed in the United Kingdom – he was married on two occasions to British citizens, the first marriage being in 1983 before the call to return; he had had two children; he had also served a substantial period in custody.

This would put him in a better position vis-à-vis the Libyan authorities than those who simply returned as failed asylum seekers because it would provide truthful reasons for his absence and his return.”

Moreover, it was correct to give “very substantial weight” to the assurances made in the above-mentioned FCO letter, given the high level of the Ambassador’s contact and the Ambassador’s judgement and experience in dealing with him. The IAT’s decision continued:

“We also concluded that the background evidence permitted and supported the conclusion that, in this particular instance, [A] could be safely returned.

The FCO Tripoli letter of 18 June 2000 referred to people seeking visas who had not returned immediately in 1984, most of whom did not appear to have had long term problems; although this was his experience, there had been no monitoring and no numbers were provided. The US State Department refers to students generally being interrogated on return, but takes it no further than that and recognises the limitations on its sources.

Returning failed asylum seekers became in effect refugees because they were interrogated, and imprisoned for showing disloyalty as shown by the May [2001] CIPU Bulletin and [another domestic case]. That general proposition is not removed by the two Bulletins of 2002. There is some but unspecific evidence to the contrary from the Swedish mission. But there is another factor of importance. As we have said, [A] would not return as a failed, or indeed, successful asylum seeker; he would return with a truthful story as to his marriages and imprisonment. Further, there is more specific guidance as to how failed asylum seekers or deportees might be treated in the letter of 21 November 2002 from the FCO ...: a claim of asylum would not lead to problems if it could be explained as being based for economic or other non-political reasons. If the Libyans discovered or assumed that such a claim had been made, in the absence of actions against the Libyan Government, detention for any length of time was unlikely. Asylum seekers at large in Libya were known to the British Embassy.

All this has to be set in the context of background evidence showing the continued detention of prisoners of conscience and the killing of some returned Islamist asylum seekers. But the general picture is of a softening of political and social conditions, a notable drop in the number of political prisoners and an increased focus by the security agencies on specific opposition groups. [A] is not a member of any Islamist group, which groups appear to be particularly targeted, nor is he a member of any opposition group. This is not to say that there is no risk; it is rather that the specific assessment made for this Appellant is supported and not contradicted by the changing tone of the more recent background evidence.”

It is not known if A requested leave to apply for judicial review of this decision.

The applicant complains that there is a real risk that, on expulsion to Libya, he will be subjected to treatment contrary to Article 3 of the Convention.

The applicant submits that, as a failed asylum seeker, he is likely to be ill-treated if returned to Libya, contrary to Article 3 of the Convention, which states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government recalled that the applicant was due to be deported not as a refused asylum seeker but because, as a result of numerous convictions for serious criminal offences, his presence in the UK was not conducive to the public good. However, even if the Libyan authorities were to become aware that he had once, many years ago, unsuccessfully applied for asylum in the UK, it was not reasonably likely that he would risk ill-treatment contrary to Article 3 in consequence.

This position was informed inter alia by advice and information obtained from the FCO and from other countries, notably Sweden and the Netherlands, which countries had effected the safe return of failed asylum seekers in a small but significant number of cases. Recent information showed that the repressive measures of Libya’s security agencies were concentrated on those in active opposition to the regime rather than the general population, and that there had been a gradual improvement in the human rights situation over the past five years. The report of the Dutch Immigration Service of November 2002 (circulated under cover of the CIPU bulletin of 25 March 2003: see above) suggested that it was unlikely that failed asylum seekers would be arrested and interviewed on their return, unless they were returned under escort, when they might face a short period of detention and questioning. In the light of all the available information, the Government considered that rejected asylum seekers could safely be returned to Libya. Any such removal would, however, seek to comply, as far as possible, with the recommendations made in the Dutch report that the returnee should be given the chance to provide his own travel papers and that the use of escorts should be avoided. Between January and September 2003 the Government had not carried out any enforced removal of a failed asylum seeker to Libya, but between April and September up to 18 Libyan nationals had either been refused entry or been forcibly returned to Libya or a third country for some other reason, such as non-compliance with the conditions attached to their leave to remain. There had also been a small number of individuals who had chosen to withdraw their asylum claims and voluntarily return to Libya. The Government was not aware of any reports that those returned to Libya in these circumstances, either from the UK or from any other country, had been ill-treated in breach of Article 3.

All the available, recent information had been carefully examined by the Immigration Appeal Tribunal which decided in the case of A. v. Secretary of State for the Home Department (see above) that it would not be contrary to Article 3 to deport a Libyan convicted of serious sexual offences who, unlike the applicant, had been granted asylum in 1994. Even though Amnesty International, in its letter dated 24 April 2003, expressed continuing concern about the fate of returned failed asylum seekers, it could not refer to any examples which did not predate the original suspension by the UK Government of returns to Libya in May 2000. The applicant had not been able to point to any significant more recent examples or studies to support his assertion that he would face a real risk of ill-treatment if returned.

The applicant submitted that his case turned on the question whether, as a failed asylum seeker, he would run a real risk of treatment contrary to Article 3 if expelled to Libya. The fact that the legal basis for his removal was his criminal conviction did not change the fact that he was, as a matter of fact, a failed asylum seeker, and the Libyan authorities would know that.

He contended that the risk remained, notwithstanding the reports of the Swedish and Netherlands immigration services. He accepted that there was little information in the public domain regarding the human rights situation in Libya, but observed that there was considerable cause for concern in much of the material that was available. He relied upon the letter from Amnesty International dated 24 April 2003 (see above), in which Amnesty expressed its continuing concern about the fate of rejected asylum seekers and on the US State Department reports which had repeatedly observed that it was unclear whether Government promises to ensure the safety of returning dissidents had been honoured, and that students returning home had been interrogated. The fact that the Government had not expelled any Libyan failed asylum seekers since May 2001 constituted prima facie evidence that it was not yet sufficiently safe to remove failed asylum seekers to Libya.

The letter from the FCO of 15 April 2002 could not be relied upon to demonstrate a change in the attitude of the Libyan authorities to returnees: since the source was unnamed and clearly not independent and the FCO letter itself referred to the presence of security agencies in Libya and the inability to be entirely confident as to the assurances of safety. The decision of the IAT in the case of A v. the Secretary of State for the Home Department (see above) was just another domestic decision which had been incorrectly made and which was not binding on the Court.

As the Court has observed in the past, 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, it must be noted that the right to political asylum is not contained in either the Convention or its Protocols (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, § 73).

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 (ibid., § 74).

When assessing whether there is a real risk that the applicant, if expelled, would be subjected to treatment contrary to Article 3, the material point in time must be that of the Court’s consideration of the case. It follows that, although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (ibid., § 86). The Court must subject all the circumstances surrounding the case to rigorous scrutiny (see the D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, § 49) in order to assess whether there are substantial grounds for the belief that the applicant would be subjected to ill-treatment contrary to Article 3 if returned to Libya.

The applicant claims that he would run a real risk of being ill-treated by the Libyan authorities because they would identify him as a failed asylum seeker.

The extent of the Libyan security network is well documented, and the Court is prepared to assume that the authorities would be aware that the applicant had once applied for asylum in the UK and been rejected. It must therefore assess whether, at the present point of time, failed asylum seekers are likely to be ill-treated on return to Libya in breach of Article 3.

It notes that in April 2000 Amnesty International became aware of the case of Mustfa Khalifa Abdulrazzaq, a failed asylum seeker who was detained and who might have disappeared following his forcible return to Libya from the UK. In response to this information, and also to concerns expressed by Amnesty International Canada, which claimed that several returned asylum seekers had been tortured, the UK Government issued the CIPU Bulletin of May 2001, implementing a limited exceptional leave policy for failed asylum seekers. This policy was, however, revoked by the bulletin of 7 October 2002, on the basis of letters from the Foreign and Commonwealth Office (Near East and North Africa Department) of January and April 2002 and a report by the Swedish Immigration Board. The Court considers that this report, which was based on a detailed fact-finding mission, is convincing evidence as to the lack of a real risk, in May/June 2002, solely on the basis of being a failed asylum seeker. This view was supported by the findings in the Report of the Dutch Immigration Service of 20 November 2002, circulated under cover of the CIPU bulletin of 25 March 2003. It is there reported that all those, including failed asylum seekers, who returned to Libya after a long period of time were likely to be held for a few days and interviewed. The security services were, however, principally interested in alleged opponents to the regime, and the fact of having made an asylum application abroad was not, in itself, a reason for special interest by the Libyan authorities.

The applicant contacted Amnesty International in April 2003, but, although Amnesty expressed itself still to be “extremely concerned about the fate of rejected asylum seekers who have been returned to Libya following the establishment of air links”, it was not able to point to any case of ill-treatment, long-term detention or disappearance more recent than that of Mustfa Khalifa Abdulrazzaq in April 2000, which prompted the Government’s change of policy in May 2001.

The current regime in Libya has a well-documented disregard for basic human rights. Having given careful consideration to all the evidence available to it, however, the Court has reached the same conclusion as the Immigration Appeal Tribunal (“IAT”) which decided the case of A. v. Secretary of State for the Home Department on 21 March 2003. As the applicant has accepted, A’s case is very similar factually to his own. The IAT, after examining a number of recent reports concerning the treatment of failed asylum seekers, concluded that a returned asylum seeker who could explain his application on economic or other non-political grounds, and who had no involvement in political opposition to the regime, was unlikely to be detained for more than a short period or ill-treated.

The Court, in the present case, similarly does not find that there are substantial grounds for believing that the applicant would run a real risk of treatment contrary to Article 3 on expulsion to Libya. Accordingly, the Court finds his complaints under Article 3 of the Convention about that proposed expulsion to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> F v. United Kingdom - 36812/02 [2004] ECHR 719 (31 August 2004) URL: http://www.bailii.org/eu/cases/ECHR/2004/719.html Cite as: [2004] ECHR 719