The European Court of Human Rights has held unanimously that the removal of a Sudanese man by the Belgian authorities – in breach of a court order – violated his rights under Article 3 and 13 of the European Convention on Human Rights.

The case involved remarkable procedural defects, including problems with access to a lawyer and interpreter. The applicant had effectively been prevented from pursuing his claim for protection and was removed to Sudan without a proper assessment by the Belgian authorities of the risks that he would face there.

In the light of recent controversial statements by the UK Home Secretary about the role of lawyers in removals, the judgment provides a helpful (re)statement of principles.

The case is MA v Belgium (application no. 19656/18). This case note is based on a detailed English press release, as only a French judgment exists at the time of writing.

Detention, asylum claim and withdrawal

In August 2017, MA was stopped and detained by Belgian authorities while trying to reach the UK. In September 2017, whilst in detention, he claimed asylum. Shortly afterwards, social media and the Sudanese press reported on an announcement by Belgium that it was working with Sudan to identify and repatriate Sudanese nationals who had unlawfully entered the country. The applicant then withdrew his asylum claim, referring to these developments and the fact he did not have a lawyer.

Sudanese government officials visited the detention centre and met with MA and other Sudanese nationals. The Sudanese embassy issued MA with a travel permit after that visit.

Court order and removal

After finally being able to consult a lawyer, MA applied to the Belgian Court of First Instance to be released from detention. This court issued a preliminary decision that he could not be removed until his application was decided, and his removal – scheduled for the next day – was cancelled.

But MA was still taken to the airport. At the airport, he claims that a man in uniform told him (in Arabic, the only language he spoke) that if he refused to board the plane, further attempts to remove him would be organised and that he would be sedated if he refused. MA signed a statement authorising his departure and boarded the flight.

Failure to assess risks under Article 3

In principle, it was for the applicant to show that there were “substantial grounds for believing” that, if removed, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 (i.e. torture or inhuman or degrading treatment or punishment.). If such evidence was raised, it was then for Belgium to dismiss any doubts.

However, the court noted that it was well known that the general human rights situation in Sudan had been problematic at the time. The Belgian authorities could not have readily ruled out the existence of a serious and established risk for the applicant.

The court found that MA had not been provided with a realistic prospect of access to international protection. This finding was primarily based on two facts. First, he had not been able to consult a lawyer in the first weeks of his detention. Second, during his interview with the Belgian authorities after his arrival, there was no interpreter, even though MA only spoke Arabic. These obstacles explained his inconsistent and hesitant engagement with the process.

The form which had been completed during this interview contained only general questions and did not address his reasons for having left Sudan. The court therefore concluded that – in breach of Article 3 – Belgium had not carried out a sufficient assessment of the risks faced by MA if returned to Sudan. 

The court also found that – by failing to suspend the applicant’s removal to Sudan despite the order by the Court of First Instance – Belgium had violated the applicant’s right to an effective remedy (i.e. Article 13).

Comment

In light of recent developments in the UK, this case provides a helpful statement of principles. It emphasises the importance of ensuring that governments have proper procedures to diligently process applications for international protection. Legal advice and, where appropriate, an interpreter are fundamental to such procedures. Crucially, the court found that a later finding that the person did not need international protection – as was the case here – was irrelevant.

The court also reiterated its previous findings that an “increasing influx of migrants” cannot absolve a state of its obligations under Article 3. One can only hope that – in their ongoing efforts against such an alleged “influx” to the UK – the Home Office will keep the absolute character of Article 3 in mind.

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