Deportation of a Palestinian from the UK to Lebanon. Allegations of ill-treatment were not proven. Application dismissed
JUDGMENT
H.A. v. the United Kingdom 05.12.2023 ( app. no. 30919/20)
SUMMARY
The applicant is a Palestinian refugee who grew up in the Ein El-Hilweh refugee camp in Lebanon. He sought asylum in the UK, claiming that he risked ill-treatment if he refused attempts to be recruited into extremist armed groups in Ein El-Hilweh camp. However, the authorities rejected his request because he did not prove that his return to Lebanon would put him in such danger.
The ECtHR considered whether the applicant’s deportation to Lebanon would entail a risk of ill-treatment in breach of Article 3 because of attempts to recruit him into extremist armed groups. It concluded that none of the evidence relied on by the applicant demonstrated that he would suffer serious harm if he were returned to the Ein El-Hilweh camp in Lebanon. The Strasbourg Court did not find a violation of Article 3 ECHR.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant was born in the Ein El-Hilweh refugee camp (also transliterated from Arabic as Ain Al-Hilweh) in Lebanon. The United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”) provides access to education, health and other services in the camp.
In 2015, the applicant was caught up in fighting in the camp and was injured. He was subsequently approached by rival paramilitary factions in the camp who wished to recruit him. In the summer of 2017, there was a battle in the camp.
In November 2017, the applicant left the camp. He arrived in the United Kingdom where he claimed asylum and humanitarian protection on 11 December 2017. He claimed that if returned to Ein El-Hilweh he would be targeted for recruitment by rival paramilitary factions within the camp and forced to fight. In his interview with Home Office officials, he referred to the 2015 fighting in the camp and was asked whether anything had ever happened specifically to him. He replied that, in 2015, he had been injured by debris on his right foot in the context of the fighting between extremist groups. He was then asked whether he had ever been targeted by any of these organisations.
On 4 April 2018, the applicant’s claim was refused. The Secretary of State did not accept that the applicant had been targeted for recruitment by extremist groups in the camp, highlighting inconsistencies in his accounts of events. The situation in Lebanon and in the camp was such that he could still receive protection from the UNRWA. He was therefore not entitled to claim asylum because Article 1D of the 1951 UN Convention on the Status of Refugees excluded from its ambit those receiving protection or assistance from UN organs or agencies other than the Office of the United Nations High Commissioner for Refugees (“UNHCR”). It was moreover not accepted that the applicant had a genuine subjective fear on return or that there was any risk of treatment that would breach Article 2 or Article 3 of the Convention. Although he had claimed in interview to have refused to be recruited by extremist groups on several occasions and to have been threatened by them as a result, no actual harm had come to him or his family.
THE DECISION OF THE COURT…
The applicant does not challenge the conclusions of the FTT as to the general conditions in the camp and the risk of violence. He has produced no further evidence in this respect. His sole contention before this Court is that the risk of recruitment by extremist armed groups puts him at particular risk of treatment contrary to Article 3, and that UNRWA and the Lebanese authorities will be unable to provide protection against these risks. The Court’s starting point is the findings of the domestic courts.
In this respect, the Court observes that the only court to examine the applicant’s Article 3 arguments concerning alleged risk on return was the FTT, with the Upper Tribunal and the Court of Appeal considering only the argument advanced under Article 1D of the Refugee Convention. The Upper Tribunal was under the impression that the only ground of appeal concerned the Refugee Convention . It is unclear why it considered this to be the case given the two grounds advanced in the renewed grounds of appeal as well as the terms of the decision granting leave to appeal The Government accepted that the applicant did advance an Article 3 argument on appeal before the Upper Tribunal but emphasised that it concerned the general conditions in the camp only, and that no specific argument concerning the risk of forced recruitment had been made. They conceded, however, that such an argument was subsequently advanced before the Court of Appeal. That court, however, observed that the point did not appear to have been argued at all before the FTT and that it had not been raised before the Upper Tribunal. Since it was not a “Robinson obvious point”, the Upper Tribunal could not have been expected to identify it itself.
The Government relied on the FTT decision in support of their position that it was untenable to suggest that the domestic courts had failed to examine whether the applicant’s risk of forcible recruitment by extremist groups in the camp gave rise to a real risk that he would be subjected to treatment contrary to Article 3 . They further argued that the Convention did not require a general right of appeal in such matters, and that the Upper Tribunal could not be criticised for failing to address the risk of recruitment argument given that the applicant had failed to raise it.
The Court’s concern in the present case is whether substantial grounds have been shown for believing there to be a real risk that the applicant will face ill-treatment if returned to Lebanon. This was a matter that the applicant raised on appeal . Regardless of whether he raised the specific question of recruitment to terrorist organisations in this context, he had clearly pleaded Article 3 and had been granted leave to appeal on this ground. That being the case, the question of risk of serious harm on return was a matter that ought to have been examined and determined by the Upper Tribunal explicitly in its decision. In view of the failure of the Upper Tribunal to do so, which failure was not remedied in the context of the Court of Appeal’s decision on his request for permission to appeal, it falls to the Court to assess the question of risk with reference to the general principles outlined above.
The Court is satisfied that the FTT gave careful consideration to the question of the alleged risk of treatment contrary to Article 3 faced by the applicant if returned to the Ein El-Hilweh camp . It considered in particular the risk of recruitment to extremist groups and found the applicant’s account of events in this respect to be credible. However, it noted that the applicant had been unable to explain in his asylum interview the consequences of his refusal to be recruited and had stated that there had been no adverse consequences for him or his family . The applicant had accordingly failed to substantiate his claim that the risk of recruitment – a risk accepted by the FTT – would result in treatment contrary to Article 3. The general conditions, although poor, did not meet the Article 3 threshold.
The FTT’s conclusions were based on the answers given by the applicant in his interview with Home Office officials , previous country guidance cases, including this Court’s judgment in Auad (cited above) and other relevant information before it (see paragraph 16 above). As can be seen from the excerpts cited above, the applicant’s interview responses accepted that there had been no adverse consequences following the previous attempts by extremist armed groups to recruit him. Although the Upper Tribunal referred to one occasion in which he was beaten up after refusing to join Fatah , the evidence upon which this conclusion is based is not clear. The FTT did not make any such factual finding, and the applicant’s interview appears to have referred to a likelihood of being beaten, in response to a hypothetical question posed, rather than to a concrete example of an incident which occurred . That this reading of the interview transcript is the correct one is further bolstered by the applicant’s answers to other questions during the interview, including his prior response to the question whether anything had ever happened specifically to him and the later exchange that took place in which the applicant confirmed that other than them trying to annoy him and threatening him, the extremist armed groups had done nothing else to him . In any case, there is no evidence before the Court concerning any beating and no submissions as to the circumstances of any such incident, its gravity or any injuries that were sustained. The Court therefore accepts the FTT’s findings on the question of risk at the time of its examination of the applicant’s case.
However, as the applicant has not already been deported, the material point in time for the assessment of the risk must be that of the Court’s consideration of the case . Given the careful scrutiny of this matter by the FTT, the question is whether any material that has come to light following that judgment is capable of leading this Court to conclude that the applicant’s expulsion to Lebanon would give rise to a risk of treatment in breach of Article 3 on account of attempts to recruit him to extremist armed groups.
In his submissions, the applicant relied in particular upon the email from UNWRA , three judgments from other States and an EASO report from 2020 . The Court observes that the UNWRA email and the judgments were cited in support of the applicant’s argument that UNRWA had no capacity to provide assistance and protection against the risk of recruitment. As such, they are irrelevant to the question which must be addressed first, namely whether there is any risk to the applicant from recruitment attempts. The EASO report does concern the recruitment of young Palestinians in refugee camps in Lebanon. However, while it noted that there was evidence of such recruitment – a matter which was accepted by the FTT – it recorded that “no information on the consequences faced by people opposing Fatah recruitment in Lebanon was found in the scope of the research conducted for this response” . It cannot therefore support the applicant’s argument that his refusal to be recruited by extremist armed groups would put him at risk of serious harm.
On the basis of its ex nunc assessment , the Court therefore concludes that none of the material currently before it permits the calling into question of the conclusion of the FTT that there was no evidence of any serious harm to the applicant if returned to Ein El-Hilweh camp in Lebanon on account of attempts to recruit him to extremist armed groups. In view of this conclusion, there would be no violation of Article 3 of the Convention on this account in the event of the applicant’s expulsion to Lebanon.
