European Court of Human Rights: Two rejected Sudanese asylum-seekers challenge their deportation. Grievances by one are upheld where those of the other are rejected

On 30 May 2017, in two separate Chamber decisions, each one concerning a rejected Sudanese asylum-seeker whose fears of persecution are essentially based on activities with the opposition Justice and Equality Movement (JEM), the European Court of Human Rights (ECHR) unanimously upheld the grievances of one, identified as A.I. (application no. 23378/15), but rejected those of the other, identified as N.A. (application no. 50364/14).

In both cases, the ECHR concluded that there was nothing to indicate that the Sudanese intelligence authorities had any interest in either applicant while they were in Sudan or abroad, before their arrival in Switzerland where they submitted a claim for international protection.

However, in the case of A.I., the ECHR unanimously ruled that his return to Sudan would amount to a violation of both Article 2 (right to life) and Article 3 (prohibition of inhuman and/or degrading treatment).

On the other hand, the ECHR considered that N.A.’s role in the opposition against the Sudanese regime while living in Switzerland, in particular his activities with the JEM, were not of the kind that would draw the attention of the Sudanese intelligence services, and therefore concluded that his return to Sudan would constitute a violation of neither Article 2 nor Article 3.

At the time of the ruling, both applicants were still living in Zurich and both had their asylum applications turned down and confirmed by Switzerland’s highest instance on such matters, the Federal Administrative Court (TAF).

A.I. was born in 1984 in the State of Sennar (Sudan), whereas N.A. claimed to have been born in Khartoum in 1972.

N.A. alleged that he worked in a car-wash in Sudan, and was stopped and searched by the Sudanese authorities one day while parking a car owned by a customer who belonged to the JEM.

He claimed that he was interrogated and ill-treated for 45 days and then imprisoned for five days. He affirmed that he had left Sudan at the end of 2008, transiting through several different countries, including Turkey and Greece.

On 7 March 2012,  N.A. entered Switzerland, where he lodged an asylum application.

A.I. claimed that ever since secondary school he was a member of an organisation working to promote the rights of minorities and to combat discrimination in Darfur, and that since 2005 he was a member of the JEM.

He collected money to support Darfur and regularly sent the money to two intermediaries, but the Sudanese authorities picked him up at home following the arrest of those two intermediaries.

He left Sudan in 2009, transiting through, and staying temporarily in, several different countries, including Turkey, Greece and Italy.

On 7 July 2012, A.I. entered Switzerland, where he lodged an asylum application.

Both applicants had their protection claims rejected because their accounts were not credible and/or plausible, and the ECHR did not find reasons to doubt the findings of the Swiss authorities, in so far as they concerned the activities of the two applicants before they arrived in Switzerland.

Both stressed their political activities carried out in Switzerland as grounds for fearing for their lives if returned to their home country, and Switzerland pointed out that the two applicants could have engaged in political activities on its territory with the ulterior motive of preventing their expulsion.

In both cases, the ECHR recognised that it is generally very difficult to evaluate whether a person is sincerely interested in the activity in question or whether s/he gets involved only to have grounds to justify fleeing his/her home country.

In similar cases, the ECHR tried to find out whether the applicant was involved in the activities in his/her home country at a time when it was foreseeable that s/he would submit an asylum application in the future, if the applicant was a political activist before fleeing his/her country of origin, or if s/he had played an important role in order to render his/her case public in the respondent State.

However, the ECHR reminded that given the importance that it attaches to Article 3 of the Convention and the irreversible nature of the harm that would result if the risk of maltreatment or torture was to take place, it prefers to analyse the grievances of the applicant on the basis of political activities which he has effectively carried out.

In the case of N.A., the ECHR noted that he had no difficulties in leaving Sudan legally, shortly after renewing his passport.

After leaving his country, he stayed several years in Greece and did not claim to have been politically active there. The ECHR therefore found no indication that the Sudanese authorities had him under their surveillance while he was living in Sudan or abroad, before his arrival in Switzerland.

Whereas his ties with the JEM during several years of his stay in Switzerland do constitute risk factors of persecution, and his political activities in Switzerland are documented since October 2013, the ECHR nevertheless noted that his political participation has not really intensified with time.

Besides, his role in the JEM while in Switzerland appears to have been minor. He has never taken up a publicly known post within the JEM, he has never represented the movement, his name has not been cited as a JEM member, and he has not been active on the Internet as a political opponent.

As to his claim that he has participated in one of the Geneva Summits for Human Rights and Democracy, providing as proof a badge as participant, he did not affirm that he represented the JEM on that occasion.

The ECHR therefore considered that his political activities in Switzerland were limited to being a mere participant in the activities of opposition organisations in exile which would not attract the attention of the Sudanese intelligence service.

As for A.I., the ECHR also considered that during the three year period between leaving Sudan and arriving in Switzerland, there was nothing to suggest that the Sudanese authorities were in some way or other interested in him.

However, as in the case of N.A., the ties which A.I. has had with the JEM, as well as with the DFEZ (Darfur Friedens- und Entwicklungs-Zentrum/Centre for Peace and Development in Darfour) since his arrival in Switzerland constitute a factor of risks of persecution.

The ECHR noted that A.I.’s political involvement, which was already not negligible in view of his role in the organisation of weekly sessions of the JEM, and his regular participation in events of the JEM and the DFEZ in Switzerland, intensified with the time, as was shown in his participation in international conferences in Geneva concerning the situation of human rights in Sudan, his critical articles against the Sudanese Government, and his nomination to the post of media spokesman for the JEM.

As it has already noted, the ECHR reminded that those who run the risk of maltreatment in Sudan are not only high-profile opponents, but also anybody who opposes or is suspected of opposing the regime in place there.

It is, moreover, known that the Sudanese Government monitors the activities of political opponents abroad.

Given I.A.’s political activities in Switzerland, the ECHR considered that it would not exclude that they had attracted the attention of the Sudanese intelligence services, and that there are reasonable grounds to believe that the applicant would risk being detained, interrogated and tortured upon his arrival at Khartoum international airport, and that it would be impossible for him to relocate to another part of his home country.