FOURTH SECTION
Application no. 62395/10
by B.L. 
against the United Kingdom
lodged on 27 October 2010

STATEMENT OF FACTS
THE FACTS
The applicant, B.L, is a Congolese national who was born in 1983 and lives in Kinshasa. He is represented before the Court by Ms A. Gonzales of Wilson and Co. Solicitors, a firm of lawyers practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom in 2005 and claimed asylum on his arrival. The basis of his claim was that he and his brother were wanted by the Congolese authorities for having accommodated a group of rebels in the family hotel in 2002 at the request of his uncle. The applicant's brother had come to the United Kingdom in 2002 and had been granted refugee status on the basis of similar facts to those relied on by the applicant.
The applicant's asylum claim was refused on 7 September 2005 and he lodged an appeal against the refusal, which was dismissed on 1 November 2005 by the then Asylum and Immigration Tribunal. Reconsideration of the Tribunal's determination was ordered on 21 November 2005 by the High Court; however, the appeal was again dismissed by the Asylum and Immigration Tribunal following a reconsideration hearing on 8 May 2007. The Immigration Judge found the applicant to be incredible and did not believe that he was of any interest to the Congolese authorities. He found that the applicant and his brother had given inconsistent evidence and did not accept that the applicant would have remained in the Democratic Republic of the Congo for three years rather than travelling to the United Kingdom in 2002 with his brother, if they had both genuinely been at risk from events in 2002.
The applicant made further representations on 21 July 2010, with which he submitted documents purporting to be a wanted persons notice and three summonses. His representations were rejected by the Home Office on 23 July 2010 as not amounting to a fresh asylum claim. The applicant had failed to explain the provenance of the submitted documents; how or when they had come into his possession; or why he had not submitted or even mentioned them earlier. It was not plausible that the summonses would have been issued in 2005 or 2006, after the applicant had left the country. In the light of the adverse credibility findings made against him at his appeal, it was not considered that the documents advanced his claim. Nor was it accepted that the country situation in the Democratic Republic of the Congo had deteriorated to the extent that the applicant would face a real risk.
The applicant sought judicial review of the decision to refuse to treat his representations as a fresh claim. This application was refused on 13 September 2010 by the High Court, on the basis that the Secretary of State had been entitled to decide, in view of the findings made at the applicant's appeal, that he would not face a real risk if returned and to attach little weight to the documents provided since the appeal.
The applicant again made representations in October 2010, in which he asserted for the first time that he was a member of the Alliance des Patriotes pour la Refondation du Congo (“APARECO”), a Congolese opposition party viewed as an opponent to the regime, in the United Kingdom and that his political involvement would put him at risk if returned to the Democratic Republic of the Congo. With his representations, he submitted a document purporting to be his APARECO membership card; a letter from APARECO confirming his membership and involvement with recruitment; and an expert report which stated the opinion that he would be at risk if returned. His representations were refused by the Home Office on 26 October 2010 as not amounting to a fresh asylum claim. It was noted that neither his previous representations nor his judicial review application had made any mention of his APARECO membership, despite his claim to have been a member since 2008. It was not accepted that the omission had been due to the applicant's previous representatives, since the onus was on the applicant to ensure that his case was put forward correctly. Even if it were accepted that the applicant were a member of APARECO, which it was not given his general lack of credibility, there was nothing to suggest that he was of such a high profile within the organisation as to render him of adverse interest to the Congolese authorities. It was not accepted that the applicant would be at risk simply as a returned failed asylum seeker, following the country guidance case of BK (Failed asylum seekers) DRC CG [2007] UKAIT 00098.
The applicant submitted a further application for judicial review of the failure to treat his representations as a fresh asylum claim on 26 October 2010. As his removal was scheduled for the following day, an injunction from the High Court was also sought on an emergency basis, but was refused on 26 October 2010. He made an application to this Court for interim measures under Rule 39, which was received at 8.34am Central European Time on 27 October 2010. The applicant's removal was scheduled for 9am Greenwich Mean Time. The application was not accompanied by all the relevant domestic decisions and, due to its late submission, the Court was not in a position to consider the request.
The applicant, via his representatives, informed the Court on 19 January 2011 that, upon arrival in the Democratic Republic of the Congo, he had been detained by the authorities and taken from the airport to an isolated detention centre, where he was interrogated about his uncle's whereabouts and his own involvement with APARECO. He states that he was tortured by being beaten on the back with a heated metal instrument. He claims that the authorities searched his luggage and found documents relating to APARECO and his asylum claim in the United Kingdom, which the applicant had asked his escorts to remove prior to his boarding the flight. He has submitted photographs to the Court of the injuries sustained during his torture, which show a man presumed to be the applicant with extensive scarring on his back. He was released the following day after a friend of his aunt, a colonel in the army whom his aunt had asked to collect the applicant at the airport, paid a bribe and arranged for his release. The applicant claims that, since his release, he has been in hiding in the Democratic Republic of the Congo.
B.  Relevant domestic law
1. Asylum and human rights claims
Sections 82(1) and 84 of the Nationality, Immigration and Asylum Act 2002 provide for a right of appeal against an immigration decision made by the Secretary of State for the Home Department, inter alia, on the grounds that the decision is incompatible with the Convention. Appeals in asylum, immigration and nationality matters were, at the relevant time, heard by the Asylum and Immigration Tribunal.
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
2. Fresh asylum and human rights claims
Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides:
“353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”
Thus, an applicant making fresh representations must establish that they have a realistic prospect of success to establish a “fresh claim” which, even if then refused by the Home Office, will nonetheless generate a fresh right of appeal to be considered on the merits.
COMPLAINT
The applicant complains that his removal to the Democratic Republic of the Congo violated Article 3 of the Convention. He further complains that the fact that he did not have access to a domestic remedy with automatic suspensive effect contravened Article 13 of the Convention.
QUESTION TO THE PARTIES
Did the applicant's removal to the Democratic Republic of the Congo violate Article 3 of the Convention, having in particular regard to the circumstances known to the Government at the time and to the torture which the applicant claims to have sustained at the hands of the Congolese authorities following his return?