30 April 2001
On 6 March 2001 the European Court of Human Rights found that the UK's proposed expulsion of a "bogus" Tanzanian asylum seeker to Tanzania would violate the European Convention on Human Rights. The court found that the UK's assessment of the risk of torture to the asylum seeker was inadequate and his return unsafe. It was ruled that the applicant, Said Mohammed Hilal, was not a bogus asylum seeker but genuinely in need of protection.
This is not the first time that the European Court of Human Rights has found the UK's intention to expel an asylum seeker contrary to the convention. In the case of Karamjit Singh Chahal ((1997) 23 EHRR 413) the UK was also condemned for its attempts to expel Indian national Chahal to India where, according to the Court of Human Rights, there was a serious risk that he would suffer torture. However, the Hilal case raises new issues about the culture of disbelief within the Home Office and the Appellate Authority, which is jeopardising the UK's international reputation.
Hilal came to the UK on 9 February 1995 and on arrival sought asylum. From 1992 until his departure from Tanzania he was persecuted and tortured by the authorities as a result of his support of an opposition party in Zanzibar. His brother, also an activist, died as a result of torture in 1995. Following the death of his brother and new police searches for him, Hilal fled to the UK.
When Hilal was interviewed by the UK authorities in respect of his claim for asylum he detailed the persecution which he and his brother had suffered at the hands of the Tanzanian authorities. But his story was not believed and his application was rejected.
He subsequently managed to obtain a copy of his brother's death certificate and a medical report regarding his death. He also produced a summons to his parents from the police authorities in Tanzania dated 25 November 1995, requesting his parents' attendance to explain Hilal's unlawful conduct in embarrassing his country. But the UK authorities maintained their position that Hilal's story was untrue.
Hilal then continued to get further evidence about his brother's death and his own torture but to no avail - each time the information was rejected as irrelevant or self-serving by the Home Office and the Immigration Appellate Authority. After exhausting domestic remedies, Hilal petitioned the European Court of Human Rights to prevent the UK from returning him to Tanzania on the basis that it would violate Article 3 of the convention which prohibits torture, including the return to torture.
The Court of Human Rights considered reports regarding the situation in Tanzania, the UK authorities' arguments and the applicant's documents. It considered at length the UK authorities' allegation that Hilal had been inconsistent in his account of torture and related events and thus should not be believed.
The Court of Human Rights held that the UK authorities were incorrect in finding Hilal's story inconsistent either internally or with the situation in Tanzania. In the court's view Hilal's account was not only consistent but also credible. It held that his deportation to Tanzania would breach the duty of the UK to protect him from torture or inhuman and degrading treatment.
The finding of the court was based on information and evidence which had been available to the UK authorities when they rejected Hilal's case. This is unlike other cases which have come before the court where the decision has hinged on information and evidence which came to light after the final negative decision. In this case what was at issue was the UK authorities' refusal to believe Hilal no matter what evidence he produced to support his account of torture. The court's finding raises serious issues for the UK. Its culture of disbelief is pervading decision making for asylum claims and is placing the UK in breach of its duty to provide protection.
One of the most sinister aspects of this culture of disbelief is its tendency to be self-validating. Because immigration officials "know" that many Tanzanian asylum seekers are bogus, so those authorities are justified in disbelieving even the most compelling evidence confirming torture.
On 5 January 1996, the UK authorities placed a mandatory visa requirement on all Tanzanian nationals seeking to come to the UK for any purpose. This visa requirement meant that Tanzanians without visas would not be allowed to board a plane to come to the UK. The Home Office press release which accompanied the imposition of the visa requirement stated: "The action has been taken to stem the increasing number of bogus asylum claims from Tanzanian nationals."
The result of the visa requirement was that while in 1995 1,535 Tanzanians, Hilal among them, applied for asylum in the UK, in 1996 that number dropped to 225 and in 1997 to 90.
Hilal was one of those "bogus" asylum seekers whose arrival in the UK in 1995 caused the UK authorities to place a visa requirement on his co-nationals to prevent them coming to the UK. But what happened to the 1,300 Tanzanian asylum seekers who might have applied for asylum in the UK in 1996 had the UK authorities not barred their entry by imposing a visa requirement? Did they manage to escape from Tanzania or did they suffer torture and death because it was no longer possible for them to flee to safety? These questions should disturb the complacency of the UK's asylum authorities. n
Professor Elspeth Guild is a partner in the immigration department at Kingsley Napley