1. Die Mitgliedstaaten des Dubliner Übereinkommens dürfen sich nicht ihrer Verantwortung entziehen, wenn eine Kettenabschiebungen droht, die zu einer Verletzung des Art. 3 EMRK führen kann. Asylanträge sind daher ggf. inhaltlich zu prüfen, auch wenn ein anderer Staat hierfür zuständig ist.
2. Keine drohende Verletzung von Art. 3 EMRK durch Abschiebung aus Großbritannien nach Deutschland wegen drohender Kettenabschiebung (Refoulement) nach Sri Lanka. Es bestehen zwar Anhaltspunkte für eine Verfolgungsgefahr in Sri Lanka und der Asylantrag wurde vom VG Regensburg bereits rechtskräftig abgelehnt. In Deutschland besteht aber noch die Möglichkeit für Abschiebungsschutz, weshalb eine Kettenabschiebung nicht unmittelbar droht.
In the present case, the applicant is threatened with removal to Germany, where a deportation order was previously issued to remove him to Sri Lanka. It is accepted by all parties that the applicant is not, as such, threatened with any treatment contrary to Article 3 in Germany. His removal to Germany is however one link in a possible chain of events which might result in his return to Sri Lanka where it is alleged that he would face the real risk of such treatment.
The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (see e.g. Waite and Kennedy v. Germany judgment of 18 February 1999, Reports 1999, § 67). The Court notes the comments of the UNHCR that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered. The English courts themselves have shown a similar concern in reviewing the decisions of the Secretary of State concerning the removal of asylum-seekers to allegedly safe third countries (see Relevant Domestic Law and Practice above, United Kingdom case-law).
The Court has therefore examined below whether the United Kingdom have complied with their obligations to protect the applicant from the risk of torture and ill-treatment contrary to Article 3 of the Convention.
Alleged risk of ill-treatment in Sri Lanka
The Court recalls that the applicant claims that he has suffered ill-treatment from the LTTE which forced him to leave his home in the Jaffna area of Sri Lanka and go to Colombo. In Colombo, he claims that he was detained for three months by the security forces as a suspected Tamil Tiger and tortured. This involved being whipped with an electric cable and being beaten on the feet and lower back by a S-lon pipe filled with cement. Following his release, he was picked up twice by the ENDLF - a pro-Government Tamil group - and detained and beaten. He was further arrested by the police in October 1995 and, during questioning, he was beaten and a heated iron rod applied to his arm.
The United Kingdom have not made submissions concerning the merits of these claims, though they have pointed out that his claims were examined by the German Federal Office and the Bavarian Administrative Court, which rejected them.
The Court notes that Federal Office in its decision rejecting asylum of 26 April 1996 did not base itself on any apparent lack of credibility of the applicant. It relied rather on the fact that, under the German approach to attribution of State responsibility, difficulties from the LTTE could not form the basis of political persecution nor could isolated excesses by soldiers. In its decision of 21 April 1997 however, the Bavarian Administrative Court which had heard the applicant expressed the opinion that his story was a "completely fabricated tissue of lies." It supported this opinion by referring to elements of his account which were in its view implausible and contradictory.
Before the Court, the applicant has provided two medical reports which strongly support his claims that he was tortured. He has also provided photographs of scars of his injuries on his arm, leg and head. These materials were not before the German authorities and it is not apparent that the German authorities gave any consideration to this aspect of the case. The applicant has also given further clarifications of events in Sri Lanka which explain to some extent the difficulties which the Bavarian Administrative Court found in his account.
The Court has also given consideration to the reports concerning Sri Lanka published by Amnesty International, the United Nations Special Rapporteur and the United States Department of State. This shows that torture and ill-treatment by the LTTE and government forces is a serious problem. Tamils, particularly young men, are at serious risk of detention and ill-treatment by security forces looking for Tamil Tigers. Young men, who bear scars, are at particular risk of being suspected of being involved with the Tamil Tigers.
The Court notes that it has not heard substantial arguments from either the United Kingdom or German Governments as to the merits of the asylum claim. Nevertheless it considers that the materials presented by the applicant at this stage give rise to concerns as to the risks faced by the applicant, should he be returned to Sri Lanka - both from the LTTE if he returned to his family in Jaffna, and from government forces on suspicion of previous involvement with LTTE.
The position of the applicant as a failed asylum-seeker if returned to Germany
The Court reiterates that it is not its function to examine asylum claims or to monitor the performance of Contracting States with regard to their observance of their obligations under the Geneva Convention on Refugees. On this basis, the fact that the German authorities exclude from consideration of asylum claims non-State agent sources of risk of ill-treatment and ill-treatment from individual officers prohibited by the laws of the country is not directly relevant. The Court’s primary concern is whether there are effective procedural safeguards of any kind protecting the applicant from being removed from Germany to Sri Lanka.
Following the submissions of the parties, and having particular regard to the explanations provided by the German Government, the Court finds the present applicant could, on his return to Germany, make a fresh claim for asylum as well as claims for protection under section 53(4) and 53(6) of the Aliens Act. It is satisfied by the German Government’s assurances that the applicant would not risk immediate or summary removal to Sri Lanka. As the previous deportation order against the applicant was made more than two years earlier, the applicant could not be removed without a fresh deportation order being made, which would be subject to review by the Administrative Court, and to which the applicant could make an application for interim protection within one week. He would not be removed until the Administrative Court had ruled on that application.
The Court recalls that the applicant has argued that these proceedings would not offer him effective protection since they would, in all likelihood, result in a further rejection of his claims and an order of removal. These objections are examined below.
Firstly, it notes that Section 51 of the Administrative Procedure Act places strict limitations on the admission of new evidence which would allow the applicant to obtain a fresh asylum hearing. This requires evidence to be submitted within three months of its becoming available and excludes evidence which was available during the earlier proceedings. This would appear to exclude the medical evidence now provided before this Court as well as letters provided by members of the applicant’s family to substantiate his account.
Secondly, even assuming that a fresh asylum hearing was granted, the Court notes that the previous decision of the Bavarian Administrative Court that the applicant lacked credibility would be given significant weight in a further consideration of his claims.
Thirdly, as pointed out, the German authorities would not take into account for the purposes of asylum or protection under Article 3 of the Convention pursuant to section 53(4) that the applicant would be at risk from LTTE members or individual security force members acting outside Sri Lankan law.
Having regard to these three factors, the Court finds that there is considerable doubt that the applicant would either be granted a follow up asylum hearing or that his second claim would be granted. There is, on similar grounds, little likelihood of his claims under section 53(4) being successful.
Nonetheless, the Court notes that the apparent gap in protection resulting from the German approach to non-State agent risk is met, to at least some extent, by the application by the German authorities of section 53(6). It appears that this provision has been applied to give protection to persons facing risk to life and limb from non-State agents, including groups acting in opposition to the Government, in addition to persons threatened by more general health and environmental risks. It has also been applied to a number of Tamils, including a young male Tamil at risk of ill-treatment from security forces due to the presence of scars on his body. The applicant has emphasised the discretionary nature of this provision. The German Government, while accepting that it is phrased in discretionary terms, submit that the courts’ interpretation makes it clear that there is an obligation to apply its protection to persons who have shown that they are in grave danger. This submission is supported by the case-law materials referred to. It is also apparent that, notwithstanding the procedural requirements of section 51 of the Administrative Procedure Act, the Federal Administrative Court considers that cases which involve a serious risk to life and personal integrity should be re-examined.
It is true that the Government have not provided any example of section 53(6) being applied to a failed asylum seeker in a second asylum procedure. The Court acknowledges that the previous court decision heavily impugning his credibility is a factor which would also weigh against a claim for protection in this context. However, on the basis of the assurances given by the German Government concerning its domestic law and practice, the Court is satisfied that the applicant’s claims, if accepted by the authorities, could fall within the scope of section 53(6) and attract its protection. While it may be that on any re-examination of the applicant’s case the German authorities might still reject it, this is largely a matter of speculation and conjecture. There is furthermore no basis on which the Court could assume in this case that Germany would fail to fulfil its obligations under Article 3 of the Convention to provide the applicant with protection against removal to Sri Lanka if he put forward substantial grounds that he faces a risk of torture and ill-treatment in that country. To the extent therefore that there is the possibility of such a removal, it has not been shown in the circumstances of this case to be sufficiently concrete or determinate.
It is not relevant for the purposes of this application that any permission to remain granted pursuant to section 53(6) would initially be for a three month period and subject to review by the authorities.
Finally, as regards the applicant’s arguments concerning the high burden of proof placed on asylum seekers in Germany, the Court is not persuaded that this has been substantiated as preventing meritorious claims in practice. It notes that this matter was considered by the English Court of Appeal and rejected. The record of Germany in granting large numbers of asylum claims gives an indication that the threshold being applied in practice is not excessively high.
In these circumstances, the Court finds that it is not established that there is a real risk that Germany would expel the applicant to Sri Lanka in breach of Article 3 of the Convention. Consequently, the United Kingdom have not failed in their obligations under this provision by taking the decision to remove the applicant to Germany. Nor has it been shown that this decision was taken without appropriate regard to the existence of adequate safeguards in Germany to avoid the risk of any inhuman or degrading treatment (see e.g. Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, §§ 97-98, Nsona and Nsona v. the Netherlands judgment of 28 November 1996, Reports 1996-V, § 102, and D. v. the United Kingdom judgment of 2 May 1997, Reports 1997-III, § 52).
It follows that this part of the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. [...]
3. Concerning Article 13 of the Convention
The applicant complains that he does not have an effective remedy in respect of his complaints, invoking Article 13 of the Convention which provides:
"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."
The United Kingdom Government do not accept that the Dublin Convention prevents their courts from giving the "most anxious scrutiny" to asylum cases to prevent any risk to life. The Court of Appeal did give the applicant’s substantive claims considerable attention, requiring the Secretary of State to satisfy himself that Germany would comply with its obligations under the Geneva Convention and this provides, they submit, an effective remedy in line with the Court’s jurisprudence in other asylum/expulsion cases (e.g. Vilvarajah v. the United Kingdom judgment cited above, and D. v. the United Kingdom judgment cited above).
The applicant argues that judicial review does not provide an effective remedy as it does not permit any "anxious scrutiny" to be given to the merits of his claim, but is confined merely to considerations as to the Secretary of State’s application of the Dublin Convention. It does not look at whether the decision to remove was right or wrong or whether the fears of persecution are well-founded but only whether the decision was lawful. It would only be unlawful if no official, properly directing his mind only to the relevant issues, could have reached the decision that he did. He refers to Court’s finding in Smith and Grady v. the United Kingdom (judgment of 29 September 1999, to be reported in Reports 1999) in which judicial review was not found to provide an effective remedy.
The Court recalls that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an "arguable complaint" under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nor does the effectiveness of a remedy for the purposes of Article 13 depend on the certainty of a favourable outcome for the applicant (see the Aksoy judgment cited above, p. 2286, § 95; and the Vilvarahah judgment cited above, § 122).
Assuming that the applicant’s complaints disclosed an "arguable" claim for the purposes of Article 13 of the Convention, the Court notes that in previous cases it has found judicial review proceedings to be an effective remedy in relation to complaints raised under Article 3 in the contexts of deportation and extradition (Soering v. the United Kingdom, §§ 119-124, Vilvarajah v. the United Kingdom, §§ 121-124, and D. v. the United Kingdom, §§ 69-73 cited above). In those cases, it was satisfied that English courts could effectively control the legality of executive discretion on substantive and procedural grounds and quash decisions as appropriate. It was also accepted that a court in the exercise of its powers of judicial review would have power to quash a decision to expel or deport an individual to a country where it was established that there was a serious risk of inhuman or degrading treatment on the ground that in all the circumstances of the case the decision was one that no reasonable Secretary of State could take.
The Court finds no reason to differ in the present case. The applicant was able to challenge in judicial review proceedings the reasonableness of the Secretary of State’s decision to issue a certificate to remove him to Germany pursuant to the arrangements reached under the Dublin Convention. His arguments concerning, inter alia, whether Germany could be regarded as a safe third country due to the authorities’ approach to the burden of proof were considered by the Court of Appeal but rejected as unfounded. The recent case of Adnan, Subaskaran and Aitseguer also indicates that the English courts will take into account the way in which allegedly safe third countries comply with their obligations under the Geneva Convention in assessing whether the Secretary of State is entitled to order removal to such countries. In this respect, the examination of the English courts will go further than this Court, since under domestic law an applicant may claim a right to asylum which is not guaranteed by the European Convention of Human Rights. While the applicant relies on the Smith and Grady judgment, this concerned an area of discretionary policy in the armed forces where the threshold at which the courts could find the policy irrational was placed so high as to exclude any effective consideration of the key issues in the case. The Court is satisfied that in the present case the substance of the applicant’s complaint under the Convention - whether the Secretary of State could order his removal to Germany - did fall within the scope of examination of the courts, which had the power to afford him the relief which he sought. [...]