The risk of torture for asylum seekers leads the ECtHR to … a red card for their deportation

JUDGMENT 

N.A. v. Switzerland (no. 50364/14) and A.I. v. Switzerland (no. 23378/15) 30-5-2017

SUMMARY

Asylum. Refugees. Removal of aliens. Both applicants are Sudanese nationals who live in the Canton of Zurich and have applied for asylum. The Federal Immigration Service concluded that they did not qualify for refugee status, rejected their asylum applications and ordered their expulsion from Switzerland. N.A. and A.I appealed but their application were irrevocably refused.

The ECtHR reiterated that the human rights situation in Sudan was alarming, especially for people with different political convictions. However, it considered that N.A. was not at risk of abuse or torture in the event of his return to Sudan and therefore the execution of the deportation order would not lead to a violation of Article 2 or 3 of the Convention. For the second applicant, the Court found that there were reasonable grounds for believing that the applicant was in danger of being imprisoned, interrogated and tortured at the time of his arrival at Khartoum Airport. The Court therefore found that there would be a violation of Articles 2 and 3 of the Convention if AI was expelled in Sudan.

PROVISIONS

Artilce 2

Article 3

PRINCIPAL FACTS

N.A., the applicant in case no. 50364/14, is a Sudanese national who was born in Khartoum (Sudan) in 1972 and currently lives in the Canton of Zurich. A.I., the applicant in case no. 23378/15, is a Sudanese national who was born in 1984 in the State of Sennar (Sudan) and currently lives in the Canton of Zurich.

N.A. alleged that he had been working in a car-wash in Sudan and had been stopped and searched by the Sudanese authorities one day while parking a car owned by a customer who belonged to the Justice and Equality Movement (“JEM”). He stated that he had been interrogated and ill-treated for 45 days and then imprisoned for five days. He also stated that he had left Sudan at the end of 2008, transiting through several different countries. N.A. entered Switzerland on 7 March 2012 where he lodged an asylum application.

A.I. submitted that ever since secondary school he had been a member of an organisation working to promote the rights of minorities and to combat discrimination in Darfur, and that since 2005 he had been a member of the JEM. He had collected money to support Darfur and had regularly sentthe money to two intermediaries, but the Sudanese authorities had picked him up at home following the arrest of those two intermediaries. He had left Sudan in 2009, transiting through several different countries before entering Switzerland on 7 July 2012 and lodging an asylum application.

The Federal Migration Office (now the State Secretariat for Migration [“SEM”]) interviewed the applicants and concluded that they were not refugees, rejected their asylum applications and ordered their deportation from Switzerland. N.A. and A.I appealed against those decisions to the Federal Administrative Court (TAF), submitting that they ran a risk of persecution in Sudan on account of their political activities. The TAF dismissed their appeals.

THE DECISION OF THE COURT 

Articles 2 and 3

The Court reiterated that the human rights situation in Sudan was alarming, in particular for political
opponents.

Concerning N.A.’s alleged reasons for fleeing the country, the Court could not identify any factors
that would justify calling into question the assessment by the domestic authorities, who had found
that the applicant’s statements lacked credibility. N.A. had neither submitted decisive arguments nor
provided the slightest documented evidence in support of his allegations of ill-treatment. With
regard to A.I., the Court noted that the domestic authorities had not fundamentally questioned his
account of his activities back in Sudan.

The Court observed that the applicants had been members of the JEM for a number of years and
that A.I. was also a member of the Darfur Peace and Development Centre (Darfur Friedens-und
Entwicklungs-Zentrum (“DFEZ”)). It found that the Sudanese secret services did not systematically
monitor the activities of political opponents abroad.

There was no evidence that the Sudanese authorities had taken any interest in N.A. when he was
living in Sudan, or abroad before he arrived in Switzerland. As the JEM was one of the main rebel
movements in Sudan, the Court acknowledged that the applicant’s membership of the JEM for
several years was a factor giving rise to a risk of persecution. However, considering that N.A.’s
political activities in Switzerland had been limited to merely participating in activities of theo pposition organisations in exile, the Court found that those activities were not liable to attract the attention of the Sudanese intelligence services. Lastly, N.A. could not claim that he had personal or family ties with eminent members of the opposition in exile that might endanger him.

The Court therefore considered that N.A. did not run the risk of ill-treatment or torture in the event of his return to Sudan. Enforcement of the deportation order would not give rise to a violation of Article 2 or Article 3 of the Convention.

With regard to A.I., the Court considered that, despite certain inconsistencies, the credibility of his allegations concerning his political activities in Switzerland could not be called into question, as his submissions had been consistent throughout the proceedings and documented by substantial evidence. Admittedly, the Court found that there was no evidence that the Sudanese authorities had taken any interest in A.I. when he had still been living in Sudan or abroad, prior to arriving in Switzerland. However, the Court observed that his membership of the JEM, and of the DFEZ, was a factor giving rise to a risk of persecution. A.I.’s already non-negligible political commitment had intensified over time. Lastly, A.I. had regularly frequented the leaders of the Swiss branch of the opposition in exile.

In the light of those factors, the Court could therefore not rule out the possibility that A.I. had attracted the attention of the Sudanese intelligence services. It found that there were reasonable grounds for believing that the applicant ran the risk of being detained, interrogated and tortured on his arrival at Khartoum Airport. Consequently, the Court found that there would be a violation of Articles 2 and 3 of the Convention if A.I. were deported to Sudan.