PROCEDURE

The case originated in an application (no. 45276/99) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Tanzanian national, Mr Said Mohammed Hilal (“the applicant”), on 5 January 1999.

The applicant, who had been granted legal aid, was represented by Sen and Co., solicitors in Wembley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Mandal, of the Foreign and Commonwealth Office.

The applicant alleged that his expulsion to Tanzania placed him at risk of torture or inhuman or degrading treatment, that he would not receive a fair trial if he were returned to Tanzania and that he had no effective remedy available to him in respect of these matters. He relied on Articles 3, 6, 8 and 13 of the Convention.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

The President of the Chamber and subsequently the Chamber decided to apply Rule 39, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Tanzania pending the Court’s decision.

By a decision of 8 February 2000, the Chamber declared the application admissible [Note by the Registry. The Court’s decision is obtainable from the Registry].

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in Pemba, one of the Zanzibar islands, in 1968. Zanzibar is part of the United Republic of Tanzania. It has its own President, parliament and government and enjoys considerable autonomy.

According to the applicant, in 1992 he joined the Civic United Front (“the CUF”), an opposition party in Zanzibar. He was an active member, attending meetings and contributing money to the party funds. In August 1994 the applicant was arrested by Chama Cha Mapinduzi (“the CCM”, the ruling party) officers because of his involvement with the CUF. He was detained at Madema police station in Zanzibar for three months, where he was tortured. He was repeatedly locked in a cell full of water for days at a time so he was unable to lie down. He was hung upside down with his feet tied together until he bled through the nose, and he was also subjected to electric shocks.

In November 1994 the applicant stated that he was released from detention following pressure from CUF leaders on the Tanzanian government. He was admitted to hospital, where a medical officer recorded that the applicant was haemorrhaging severely through the nose as a result of his treatment and had been subjected to harm endangering life.

The applicant stated that his brother had been taken into detention shortly before he was. He had been ill-treated and died in January 1995 in hospital where he had been taken from prison.

Following his release, the applicant stated that he only contributed funds to the CUF. In January 1995 the police came looking for him while he was out. The police detained his wife overnight and questioned his friends. He decided to leave his home and Tanzania, fearing for his safety.

On 9 February 1995 the applicant arrived in the United Kingdom and claimed asylum. That day a pro forma interview was held with an immigration officer, where the applicant was assisted by an interpreter. According to the form, the purpose of the interview was to enable the immigration officer to take down the initial details of the asylum application. When asked what the basis of his asylum claim was, the applicant was noted as having said: “Because of the problems in the country and my safety. I have been threatened a lot by the ruling party so I decided to leave the country.” The applicant stated that he had been a member of the CUF since 1992.

At the full asylum interview held on 15 March 1995, the applicant was recorded as stating that he had had no problem in obtaining a passport as he was a businessman, and that he had organised his passage to the United Kingdom himself. When asked what the basis for his asylum claim was, he stated that he had been taken away and detained for three months, from August to November 1994, at Madema police station, where he had been tortured. He had been locked in a room with a very low ceiling, where he could not stand up, and then placed for one and a half days in a room filled with water up to the chest, where he could not lie down. He was taken out and returned there twice a week. A few days before he was released he was hung upside down and given electric shocks. He had been arrested because he gave money to the CUF. He was told that he had been released because the CUF leaders had approached the authorities in Dar es Salaam. After his release, he was treated in a private clinic. He produced his CUF card. He had been an ordinary member, doing nothing more than give money. He had not taken part in the demonstration which had been allowed. He mentioned that his brother had been arrested in January 1995 and died after being in police custody. His brother had been badly beaten and was vomiting blood, so they had released him to hospital on 20 January 1995 as they knew he was going to die. His uncle had helped him to leave, obtaining an income-tax clearance and an airline ticket. His uncle checked in with the ticket for him and he was able to board the plane.

On 29 June 1995 the Secretary of State refused asylum, finding the applicant’s account implausible and noting inconsistencies in his answers. The applicant’s appeal to a special adjudicator was dismissed on 8 November 1996. During the proceedings the applicant had claimed that the Tanzanian authorities intercepted the letters he was sending home, knew that he had claimed asylum, and had summoned his parents to explain “about [their] son who [was] in a foreign country to abuse the government which [was] in power ...” He provided correspondence from the Royal Mail concerning his enquiries about money which had gone missing from a registered letter dated 27 November 1995 which he had sent to his parents in Tanzania.

In his decision the special adjudicator noted inconsistencies between the evidence given by the applicant before him and the answers given in his asylum interviews. He placed considerable weight on the fact that the applicant had not mentioned his arrest and torture at his first asylum interview and did not accept the applicant’s explanation that the interviewing officer told him that it was not necessary to give details at this stage or that he was having difficulties with the interpreter. He also noted that the evidence concerning his brother’s arrest was contradictory and that no documentary evidence such as a death certificate had been produced. He therefore did not accept that the applicant’s brother was arrested, tortured or killed. He also observed that the applicant had not provided documentary evidence that the Zanzibar authorities were accusing him of tarnishing Tanzania’s good name, and therefore did not accept that it existed. Looking at the evidence as a whole, he concluded that there was no well-founded fear of persecution for a Convention reason established to the required standard.

Leave to appeal to the Immigration Appeal Tribunal was refused on 10 January 1997.

The applicant obtained a copy of his brother’s death certificate and a medical report which recorded that his brother died on 20 January 1995, after being brought to hospital from prison with a history of severe chest pain and general body weakness associated with a fever. He also obtained the summons from the Pemba police headquarters to his parents dated 25 November 1995 requesting their attendance to explain the applicant’s unlawful conduct in embarrassing the government and country. He made representations to the Secretary of State dated 30 January 1997, providing copies and requesting that his letter be considered as a fresh asylum application.

By letter dated 4 February 1997 the Secretary of State expressed the view that the police summons was self-serving and not significant, while the death certificate did not disclose proof that his brother, who died of a fever, had been murdered by the authorities. He had, accordingly, decided not to treat the representations as a fresh application for asylum, but to reconsider the original asylum application on all the evidence available to him. He refused on that basis to reverse his decision.

By letter dated 4 February 1997 the applicant’s representatives requested, alternatively, that the new material be referred to the special adjudicator under section 21 of the Immigration Act 1971. By letter dated 5 February 1997 the Secretary of State informed them that he had decided not to refer the material in question.

By letter dated 29 April 1997 the applicant’s representatives submitted to the Secretary of State a medical report about the applicant’s treatment following detention in Zanzibar, and requested that the new materials be submitted to the special adjudicator under section 21. They submitted further representations on 26 March 1998. The hospital medical report, dated 8 November 1994, from a medical officer recorded that the applicant had suffered a severe nasal haemorrhage, that this was of a “dangerous harm” degree and that the injury had been inflicted by hanging upside down.

By letter dated 23 April 1998 the Secretary of State informed the applicant that he had considered the new material, but that this evidence did not cause him to reverse his decision to refuse asylum. He noted that the documents would have been available to the applicant at the time of his appeal hearing but were not produced, which cast doubt on their authenticity. Even if the medical certificate and police summons were authentic, however, he saw no reason why the applicant could not return to live safely and without harassment in mainland Tanzania. He refused to make a reference under section 21.

The applicant applied for leave to apply for judicial review of the Secretary of State’s refusal to refer the new material to the special adjudicator. He submitted an expert opinion confirming that the documents were genuine. The Secretary of State submitted that the documents were irrelevant because the applicant could live safely in mainland Tanzania. He relied on a letter from the British High Commission in Tanzania dated 8 April 1998 which stated that in general there was no evidence of politically motivated detentions on the mainland, although there were “more general human rights problems such as arbitrary detentions and poor penal conditions” on the mainland.

On 1 July 1998 the application for leave was rejected by the High Court. Mr Justice Jowitt stated: “The Secretary of State’s decision [is] that things have changed and that as matters now stand, whatever was or was not the case in November 1996 and whatever ought or ought not to have been the outcome of the appeal heard then, the applicant can safely return to his home country, provided he goes to the mainland. Having looked at the letter [from the British High Commission], I can see no arguable grounds for saying that the Secretary of State has acted with Wednesbury unreasonableness in concluding that in the light of this new material he has no need to refer the matter to the Special Adjudicator and this application must be refused.”

The applicant appealed to the Court of Appeal arguing that the Secretary of State’s refusal was wrong in law and “Wednesbury unreasonable” and that, in claiming that the applicant could live safely on the mainland, he was not complying with international obligations by failing to take into account the applicant’s specific case or documentation.

On 1 December 1998 the Court of Appeal refused leave to apply for judicial review. In its judgment it noted that the hospital records showed that his brother had died of fever and did not support the applicant’s evidence that his brother had been tortured. Even assuming that the medical report on the applicant and the summons by the police to his parents were genuine, there was no evidence to suggest that the conclusion reached by the Secretary of State that the applicant could live without harassment on the mainland was wrong.

On 23 December 1998 the applicant was notified that he would be removed to Zanzibar on 11 January 1999.

On 22 February 1999 the applicant’s wife arrived in the United Kingdom and claimed asylum shortly afterwards. It was recorded that she stated in her interview that the police had harassed her due to her husband’s involvement with the CUF. She had been detained for one day in April 1995 and questioned about her husband’s whereabouts. The police came to her house on 12 February 1999, wanting to know if her husband was back in Zanzibar as there was a rumour that the United Kingdom had sent back most of the asylum-seekers from Zanzibar. They were angry because he had claimed asylum and tarnished the name of the President. They threatened to arrest her instead.