MA ( Ba’ath party, Ill-treatment by authorities) Sudan [2004] UKIAT 00336 (13 October 2004) [2004] UKIAT 00336

UKIAT

MA ( Ba’ath party, Ill-treatment by authorities) Sudan [2004] UKIAT 00336 (13 October 2004)

[2004] UKIAT 00336 · 2004-10-13

[1]MA ( Ba'ath party – Ill-treatment by authorities) Sudan

[2004] UKIAT 00336

IMMIGRATION APPEAL TRIBUNAL Date of hearing: 14 June 2004 Date Determination notified: 13 October 2004 Before Mrs J A J C Gleeson (Vice President) Dr J O de Barros Mr G F Sandall Between MA APPELLANT and Secretary of State for the Home Department RESPONDENT For the appellant: Miss H Kaur, of Counsel, Instructed by TRP, Solicitors For the respondent: Mr J G Jones, Home Office Presenting Officer DETERMINATION AND REASONS The appellant appeals with permission against the determination of an Adjudicator, Mr Neil Davison, who dismissed his appeal against the Secretary of State's refusal to recognise him as a refugee or to allow him to remain in the United Kingdom on humanitarian grounds. Permission to appeal was granted on the basis that the Adjudicator had apparently accepted the claimant's account of low-level activities for the Ba'ath party of Sudan and that arguably the risk on return should have been evaluated.

[2]Mr Jones conceded that the appeal must be allowed. The argument between the parties related to the question whether it should be allowed outright, or remitted afresh to a different Adjudicator for further findings of fact.

[3]For the appellant, Miss Kaur directed us to the following positive findings by the Adjudicator – that the appellant was arrested in 2000 that he had been putting up posters (16(e)) that his activities were low-level and at the nuisance level, and he was not in greater danger now than in 2000 that he was a long-term member of the Ba'ath party (16(a)) that he had been arrested on numerous occasions and suffered routine torture (16(d) and 16(b)) that he was a long-term political activist But that the Adjudicator rejected the levels of ill-treatment which the appellant claimed during these detentions, despite the objective evidence.

[4]The Adjudicator considered that future risk to leaders could be distinguished from that for low-level activists. Miss Kaur submitted that this was an error of law on the basis of CIPU Country Report April 2004 paragraphs 6.1-6.5 and an Amnesty International report of 31 January 2003 which appears at page 12 of her bundle. Further, the expert report of Peter Verney had not been properly considered, especially at paragraphs 17-20. The CIPU Country Report indicated (paragraph 6.3) that things had worsened not improved since the appellant came to the United Kingdom. There was objective evidence of torture and reference was made to scarring in the appellant's statement.

[5]For the Respondent, Mr Jones agreed that the determination was unsustainable. There was a lack of clarity in the Adjudicator's findings and he had misdirected himself as to the correct date at 16(b). It was not clear whether he had believed any of the claimant's account after 1991 and that disbelief arguably governed the whole of the claimant's account. It was difficult to assess the current risk, other than by reference to the Ba'ath party section of the CIPU Country Report and paragraph 5.3 of the doctor's report. He asked the Tribunal to allow and remit the appeal for consideration afresh.

[6]The Tribunal retired to consider the submissions and indicated that we would allow the appeal outright, with reasons to follow, which we now give. The relevant passages of the determination are at paragraphs 6-8, 16, and 14 of the Adjudicator's determination – "6. …The appellant, a Sudanese male, belongs to a political party in Sudan. The party is the al Ba'ath party and the aim of that party is to unify Arab states. It is a democratic party, currently opposed by the Sudanese Government. He joined the party in 1989, following his brother's footsteps. His function was to prepare leaflets, and write Articles about the party. He assisted in the distribution of leaflets. 7. His brother left Sudan in 1989 and never returned. His brother lives in Iraq and runs the party from that country. The appellant was at secondary school when his brother left Iraq. He was involved in political activities at that time, engaged in attempts to recruit more students. In 1991, the appellant was involved in a demonstration, which resulted in police intervention. The appellant was arrested and questioned about his brother. He was released after three days and beaten at during detention. He continued with his political activity. He was arrested, detained, beaten and tortured in 1992, but continued his political activity. In 1993, he was arrested again, and held in a detention centre for one month. Once again he was questioned about his brother, and also about his own activities. He was beaten severely and has scars on his left leg and right hand. He was warned about his son's political activity, but nevertheless the appellant continued with his political activity and in 1994, he was arrested, beaten, tortured, detained for one week and released again. He attended University between 1995-1999, in Khartoum. He completed his studies but was arrested on numerous occasions during those years. In the year 2000, security forces detained him while he was sticking posters on a wall. He was arrested, beaten, tortured and detained for two months. His torture included electric shock treatment. He was sent to another detention centre, and during his transfer period he managed to escape. He went on to contact party members in the area. He stayed in hiding for about 20 days. He was taken to another city where he remained with another member for about one month, until he was able to find an agent. He was taken to the port of Sudan where he remained for 10 years [sic] before being put inside a lorry, which embarked on a ship. After two weeks he arrived in the United Kingdom by the same lorry. 8. He fears persecution if he returns to Sudan on the grounds of his political opinion. He fears that he will be killed or at the least detained and tortured… 14. The security forces reportedly torture and beat suspected opponents of the Government such as student leaders, lawyers, and others. The security forces use excessive force, including beatings and tear gas, to disperse unapproved demonstrations. There have been reports that security forces torture persons in 'ghost houses' although there were no reports in 2001 that security forces used these 'ghost houses'. These are places where security forces detain Government opponents incommunicado under harsh conditions for n indeterminate time with no supervision by the courts or other independent authorities with powers to release the detainees. The security forces are rarely, if ever, held accountable for such abuses."

[7]Paragraph 16 has already been summarised. The CIPU Country Report for April 2004 at paragraphs 6.1-6.5 says this – "6.1 The USSD Report on Human Rights Practices for 2003, which was published in March 2004, stated that "The Government's human rights record remained extremely poor, and although there were improvements in some areas, numerous, serious abuses remained." Amnesty International (AI) claimed in its July 2003 report 'Sudan: Empty Promises?' "Yet, with the important advances in human rights promotion in northern Sudan and internationally sponsored agreements on the issue of protection of civilians in most of the south it is still true to say that 'virtually every kind of human rights violation of concern to Amnesty International has been perpetrated by a political and security establishment that behaves as if it is unaccountable'", as stated in AI's 1995 Annual Report on Sudan. 6.2 In a February 2003 briefing to the UN Commission on Human Rights, Human Rights Watch (HRW) called on the Commission to renew the Special Rapporteur's mandate. The human rights situation in 2002 and 2003 remained poor in most areas, including the abuse of individuals and groups, and the severe restriction of the fundamental freedoms of the people of Sudan as reported in detail by human rights groups such as AI and SHRO. Yet the UN Commission voted to reject the resolution on the situation in Sudan, resulting in the end of UN human rights monitoring in Sudan. 6.3 According to the USSD Report for 2003 the "Security forces and associated militias were responsible for extra-judicial killings and disappearances." "Security forces regularly beat, harassed, arbitrarily arrested, and detained incommunicado opponents or suspected opponents of the Government". The Special Rapporteur (SR) stated in January 2003 that "Overall, the role of the security apparatus as the main entity responsible for the human rights abuses as well as the impunity enjoyed by security officers remains an issue of serious concern." 6.4 Various human rights groups reported on specific cases concerning the violation of the human rights of organisations, groups and individuals' throughout 2003 and into 2004. The USSD Report stated that there were no reports of the Government taking any action against any members of the security forces who have reportedly killed, tortured, beat, raped or otherwise abused persons in 2001 and 2002. 6.5 The USSD Report on for 2003 stated that "The Intergovernmental Authority on Development (IGAD), under Kenyan leadership, continued to work towards an end to the country's civil war." [3a] (p 1) "In October 2002, the parties signed a Memorandum of Understanding (MOU) that called for a cessation of hostilities and unimpeded humanitarian access to all areas of the country, and which both parties have largely respected; however at year's end [2003] access to the Darfur region was restricted due to the conflict." "

[8]The appellant's account of his ill-treatment accords with that evidence. We now consider the appellant's medical evidence; Dr Huckstep has been qualified since 1986 having studied at Oxford University Medical School and worked in inter alia at Accident Emergency spinal injuries and general Surgery. He is a member of the Royal college of General Practitioners and a full-time GP. However, he regularly writes medical reports on asylum seekers.

[9]In the present appeal he sets out carefully at paragraph 2 the modes of torture to which this appellant claims to have been subjected. "2.1 Mr Mohammed states that he was tortured in the following manners, (For the purpose of this section, I shall amalgamate the various episodes of torture, since it would not be possible in any case to differentiate older from newer sings of torture in terms of physical markings once one to two years have elapsed from the most recent torture episode). Beaten with sticks2.1.1 Mr Mohammed reported that he was beaten with sticks. He was beaten on the entire body, but mostly on the soles on the feet and on the back. He was also beaten on the palms of the heads. Electricity applied to his back

2.1.2 Electric current were applied to his back using live wires. At times, his torturers made his back wet using water, so that the electric current would spread across the film of water. The electric current being applied to his back occurred on approximately "not less than a hundred times". Cigarettes being stubbed out on his skin

2.1.3 He told me that cigarettes were stubbed out on his arms, hands and elsewhere on his body. This occurred approximately seventeen to twenty times. Suspension from a height

2.1.4 At times he was suspended from his tied hands, so that his legs were not touching the ground and he was swinging. At other times he was suspended upside down from his ankles. Being hit with bags of sand

2.1.5 His back was impacted with bags of sand. This occurred on all the detentions. (The electric current being applied to his back also occurred nearly all the detentions. He told me "While I was at University this occurred many, many times"). Exposure to blazing sun

2.1.6 He was made to stand for several hours in the blazing sun, while tied up. At other times he was made to lie down on the hot sand while tied up, with no clothes on, in the blazing sun, for several hours. Sleep deprivation

2.1.7 At times he had to go four days without sleep. He was kept awake by loud noise and bright lights. He was tied up during this period of four days' sleep deprivation, so he was unable to put his fingers in his ears. He was being watched by an armed guard the entire time. If he fell asleep, he would be woken up and punished further. Being burnt by white hot metal

2.1.8 A white hot piece of metal was taken from a fire and pressed on various parts of Mr Mohammed's anatomy. Being beaten with a piece of metal

2.1.9 Mr Mohammed was beaten with hard metal and he remembers that this left a scar on his left upper leg."

[10]At paragraphs 4 and 5 his overview of the mental state of the appellant and his opinion as to the credibility of the appellant's account of torture is as follows:

"4.1 Mr Mohammed told me he sleeps very poorly and he has a headache if he wakes up suddenly. He told me that he has many bad dreams about the torture and when these bad dreams occur he relives the torture or experiences of running desperately away from would-be torturers. 4.2 He told me he has experiences of reliving the torture during the day and these sound to me very much like classic flashbacks. He told me he feels very low and sad and he misses his life in Sudan very much. He was not married in Sudan, but he misses his family very much. He told me that eating is very difficult and he has very low appetite. 5.1 Mr Mohammed reported that he had been tortured on many occasions by the Sudanese authorities of his political persuasions and the modes of torture are set out above. 5.2 I carefully examined Mr Mohammed's entire body surface and, as documented above, found a very large number of scars. There are a large number of linear scars n his back and on his limbs, fully consistent with being beaten with sticks. 5.3 There are areas on his left arm and his left leg, which have been massively burned and these areas of scarring are diagnostic of a burn and I do not believe that there is any other likely mode of causation. 5.4 In addition, he bears a large number of cigarette burns and while some are slightly faint and could have been caused by a light cigarette burn, with a classical circular, shiny, puckered, discoloured scar of a cigarette burn. 5.5 In addition, he bears scars over his feet, which he told me were caused by ropes and the circumferential nature of these scars and their positioning are fully compatible with rope burns. 5.6 In conclusion, I find the physical examination of Mr Mohammed highly consistent with his history of having been tortured as stated."

[11]The intervening paragraphs deal in detail with each of the scars and there are a great many of them. On the basis of this medical report the Tribunal accepts that the appellant has on his body a very significant level of scarring which is fully consistent with his having been physically abused on more than one occasion over the long period that he alleges. That shows that the authorities maintained an interest in him for almost 10 years, particularly in the light of his brother's status as the leader of the Ba'ath party in Sudan. The CIPU Country Report for April 2004 records the attitude of the authorities to that party – 6.200 According to the Danish fact-finding Report of 2001, "The pan-Arab Baa'th Party (BP) is divided into pro-Syrian and pro-Arab [Iraqi] factions, but members of both factions are [reportedly] at risk of attack." The Baa'th Party reportedly remained committed to unifying Sudan with either Egypt or Libya according to sudan.net as an initial step in the creation of a single nation encompassing all Arabic-speaking countries. However, the Baa'th Party's ideological reservations about the regimes in those two countries prohibited active political backing for this goal. According to sudan.net, "The Nimeiri and al-Bashir governments alternately tolerated and persecuted the Baa'th."

[12]We reminded ourselves of the evidence of the Sudanese authorities' continuing abuse (with impunity) of political opponents as recorded in the CIPU Country Report which is the Respondent's evidence. We note the evidence of lengthy abuse of this particular appellant and his credible account of ten years' connection with this party. We do not consider his activities to be low-level, but in any event, there is no indication in the CIPU Country Report evidence that the authorities in the Sudan make that distinction.

[13]The Tribunal does not find it necessary to remit this appeal for fresh findings of fact. There are sufficient findings of fact in the Adjudicator's determination as it stands and accordingly, we allow this appeal outright.

[14]The appellant's appeal is allowed. Mrs J A J C Gleeson Vice President Date: 19 February 2005