The complainant is A.N., a national of Uganda born in 1982. At the time of submission, his request for asylum in the State party had been rejected, and he was facing deportation to Uganda. The complainant claims that, if the State party were to proceed with his deportation, it would be in violation of its obligations under article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 26 June 1987. The complainant is not represented by counsel.
On 11 March 2021, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Uganda while his complaint was being considered by the Committee.
Factual background
The complainant arrived in Sweden on 9 September 2018 and applied for asylum on 17 September 2018. His explanation for that delay was that he had wanted to attend the funeral of a friend on 9 September, was tired, did not know to whom to address the application and could not speak Swedish. He submitted that, in October 2017, he had become a member of the People Power Movement and, in August 2018, he had taken part in demonstrations and had been detained by the authorities, together with other members, under the accusation of throwing stones at the President’s car. He had been questioned about who was financing the People Power Movement. He had been beaten and had had his genitals squeezed very hard. After a couple of days, he had been released on bail, only to be detained again a few days later. On the second occasion, the complainant had been accused of committing crimes by taking part in violent campaigns. He had been released on bail once again. A few weeks later, he had left the country legally by plane.
The complainant told the migration authorities that, upon return to Uganda, he risked being imprisoned, tortured or killed by the authorities. He produced a copy of the certificate of his release on bail on 17 August 2018, an arrest warrant issued on 20 August 2018,3 a newspaper article stating that he was wanted by the police, a newspaper article regarding the killing of other members of the People Power Movement by the authorities and a medical report dated 15 April 2019. The Swedish Migration Agency held an introductory interview with the complainant on 17 September 2018 and, on 20 February 2019, an extensive asylum investigation that lasted for more than two and a half hours, in the presence of the public counsel and an interpreter.
- It is mentioned in the warrant that the complainant is wanted because he was granted bail and failed to report to the court as promised. ↩
On 26 May 2020, the Swedish Migration Agency rejected the complainant’s application for a residence and work permit and decided to expel him to Uganda. The Agency considered that the complainant had not provided a reasonable explanation for not having applied for asylum immediately. It concluded that the complainant had not provided reliable information about his membership of and engagement with the People Power Movement because his account had lacked the level of detail expected of someone who had been active in the organization: he had been unable to explain how he had been recruited by the party leader and what his work duties had been, just as he had been unable to describe in detail the party’s symbol.
Regarding the complainant’s alleged participation in a demonstration on behalf of the People Power Movement in August 2018, the Swedish Migration Agency held that his oral account of being detained on two occasions and released on bail had been vague and lacking in detail. The complainant had been unable to elaborate on how he had been detained, where he had been held and what had happened during that time. He had also been unable to explain why the authorities would have released him on bail if he had been accused of throwing stones at the President’s car, supporting an opposition leader and taking part in violent campaigns. In that connection, the Agency deemed that the copies of the bail certificate, the arrest warrant and the newspaper articles had low probative value in the absence of any security feature that could be checked. As to the medical report attesting to the presence of scars on the complainant’s body, the Agency declared that it was not clear what method the doctor had used to determine that the injuries had been caused by torture. There was no element to link the injuries to the time when, according to the complainant, he had been detained. Lastly, the Agency noted that the complainant had not been able to elaborate on how his friend – a police officer – had helped him to leave the country.
On 12 January 2021, the Luleå Administrative Court rejected the complainant’s appeal. It held that the country-of-origin information did not support the idea that everyone associated with the People Power Movement was of such interest to the authorities as to be at risk of being subjected to treatment constituting grounds for protection. The complainant’s membership of the People Power Movement was therefore not, in itself, sufficient for the granting of a residence permit.
The Luleå Administrative Court then analysed the evidence submitted by the complainant and upheld the assessment of the Swedish Migration Agency as to the low probative value of the certificate and the arrest warrant. It held that the article mentioning the complainant’s name provided some support for his claim that the Ugandan authorities had had an interest in prosecuting him, but the article in itself could not plausibly demonstrate that there was at present a concrete threat from the authorities because of the complainant’s participation in protests in 2018. The court considered that the information about the Ugandan authorities having killed or injured members of the People Power Movement could not demonstrate a concrete threat to the complainant.
The Luleå Administrative Court noted that, a few weeks after having been detained and released on bail, the complainant had left Uganda legally and with a visa for the Schengen area. For the court, those circumstances contradicted the complainant’s assertion that the authorities would have a particular interest in him. In addition, the court considered that the complainant’s trip to Sweden could not be regarded as anything other than well planned, since, despite his claim of an urgent threat, he had applied for a visa to facilitate his departure from Uganda. His decision to leave the country legally through an airport undermined his claims regarding a fear of being subjected by the Ugandan authorities to treatment constituting grounds for protection. The court therefore concluded that it could not be ruled out that the primary purpose of the complainant’s trip to Sweden had been to attend the funeral of his friend, as he himself had suggested. Furthermore, the complainant had waited for about a week before applying for asylum. He had not given a reasonable explanation for that delay, although he might be considered to have some knowledge of the asylum system, since he had applied for asylum in the United Kingdom of Great Britain and Northern Ireland in 2011. For the court, the complainant’s failure to seek asylum soon after his arrival in Sweden contradicted his claim that he considered himself to be in urgent need of protection. As the court decided that the grounds for asylum were insufficient, there was no reason to assess the reliability of the complainant’s account.
On 24 February 2021, the Migration Court of Appeal refused leave to appeal.
Complaint
The complainant submits that, if returned to Uganda, he faces a real risk of being tortured and suffering cruel, inhuman or degrading treatment or punishment, in violation of article 3 of the Convention.
The complainant contests the findings of the Swedish migration authorities, in particular the fact that his evidence was dismissed. He also complains that the migration authorities did not properly assess the human rights situation in Uganda.
State party’s observations on admissibility and the merits
In its observations of 11 November 2021, the State party challenges the admissibility of the complaint, arguing that it is manifestly unfounded because it fails to rise to the minimum level of substantiation.
On the merits, the State party refers to the decisions issued at the domestic level, holding that there is no reason to conclude that they were inadequate or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a denial of justice. It recalls that Uganda is a party to the Convention. While not wishing to underestimate the concerns that may legitimately be expressed regarding the human rights situation in Uganda, the State party recalls that the situation in the country does not in itself suffice to establish that the complainant’s expulsion would be contrary to article 3 of the Convention.
Complainant’s comments on the State party’s observations on admissibility and the merits
On 30 March 2023, 3 April 2023 and 13 May 2023, the complainant submitted comments on the State party’s observations, arguing that abductions of supporters of the People Power Movement and of the National Unity Platform – the political wing of the People Power Movement – occurred daily in Uganda.4 He recalled the facts and alleged that the interpreter who had assisted him in the asylum proceedings had not translated his statements accurately because most interpreters were working for, and were on the payroll of, the regime in Uganda. He had mentioned to the migration authorities that he was fluent in English, but they had insisted on conducting the interview in his mother tongue.
- The complainant provides several videos. ↩
With regard to the Swedish authorities’ allegation that the documents produced were not authentic, the complainant states that, unlike in Sweden, documents in Uganda do not have seals and that he was pressed to flee the country, so he did not have time to question what he had been given by the Ugandan authorities. He claims that, to support his claim of membership of the People Power Movement, he presented as evidence a photograph of himself with the president of the People Power Movement, but it had not been taken into account by the State party’s authorities. He explains that, at one stage, the People Power Movement did not issue membership cards, although he does have one, which he can no longer find. Lastly, he reiterates the dangers to which members of the People Power Movement are exposed in Uganda. In that connection, he gives the example of a Ugandan blogger who lived in Sweden and was killed by unknown assailants when he returned to Uganda and of an alleged critic of the regime of Yoweri Kaguta Museveni, the President of Uganda, who was living in Ireland and had suffered intimidation when he had arrived at a Ugandan airport.
Consideration of admissibility
Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.
In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that, in the present case, the State party has not contested that the complainant has exhausted all available domestic remedies. The Committee therefore finds that it is not precluded from considering the communication under article 22 (5) (b) of the Convention.
The Committee notes that the State party challenges the admissibility of the complainant’s claims under article 3 on the basis that they are manifestly unfounded, given that the complainant has not substantiated the existence of substantial grounds for believing that he would face a foreseeable, present, personal and real risk of torture if returned to Uganda. The Committee considers, however, that the complainant has sufficiently substantiated his claims for the purposes of admissibility, on the basis of article 3 of the Convention, regarding his risk of being subjected to torture and ill-treatment if returned to Uganda. Accordingly, it declares the communication admissible and proceeds with its consideration of the merits.
Consideration of the merits
The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.
In the present case, the issue before the Committee is whether the return of the complainant to Uganda would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (refouler) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Uganda. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the complainant would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances. Moreover, the Committee notes that, since Uganda has not made the declaration provided for in article 22 (1) of the Convention, in the event of a violation of the complainant’s rights under the Convention in that country, he would be deprived of the legal option of recourse to the Committee for protection of any kind.5
- Melie v. Switzerland (CAT/C/76/D/1049/2021), para. 7.3. ↩
The Committee recalls its general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be highly probable, the burden of proof generally falls on the complainant, who must present an arguable case establishing that he or she faces a foreseeable, real and personal risk.6 The Committee also recalls that, in accordance with the same general comment, it gives considerable weight to findings of fact made by organs of the State party concerned, while, at the same time, it is not bound by such findings and instead has the power, under article 22 (4) of the Convention, to make a free assessment of the information available to it, taking into account all the circumstances relevant to each case (paras. 11, 39 and 50).
- For example, A.R. v. Netherlands (CAT/C/31/D/203/2002), para. 7.3; and Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4. ↩
In the present case, the Committee notes that the complainant maintains that he fears for his life, should he be returned to Uganda, because he considers that he will be targeted by the authorities as member of the People Power Movement. To support his argument, he produces a copy of his certificate of release on bail following his arrest on suspicion of having incited public violence and a copy of an arrest warrant in which it is mentioned that he is wanted for not having reported to the court following his release on bail. The Committee observes that the two documents were provided to the Swedish administrative and judicial authorities; although the authorities did not dismiss them as being fake, they nonetheless deemed them to be of low probative value in the absence of any security feature that could be checked. The Committee observes that the complainant has provided no evidence to challenge the specific arguments given by the Swedish authorities for assigning a low probative value to the evidence that he adduced in support of his allegations.
In this regard, the Committee notes that, even if it were to accept the argument that the complainant was subjected to torture and ill-treatment in the past, the question that arises is whether he would be at risk of torture in Uganda at the present time, if he were forcibly returned. The Committee also notes that, according to its practice, the onus is generally on the complainant to present an arguable case.7
- For example, S.L. v. Sweden, communication No. 150/1999, para. 6.3; M.A.K. v. Germany (CAT/C/32/D/214/2002), para. 13.5; C.A.R.M. et al. v. Canada (CAT/C/38/D/298/2006), para. 8.10; and N.B-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9. ↩
The Committee notes that the State party’s authorities have apparently called into question the credibility of the complainant’s claims regarding his detention. They accepted that the Ugandan authorities might have had an interest in prosecuting the complainant in the past, but they questioned the existence of a concrete threat at present because of the complainant’s participation in protests in 2018. The Swedish authorities did not deny that members of the People Power Movement had been persecuted by the Ugandan authorities but ruled that such events could not demonstrate a concrete threat to the complainant. In that connection, even if the Committee was aware that numerous aspects of the human rights situation in Uganda remained problematic,8 it reiterated that the occurrence of human rights violations in a complainant’s country of origin was not, of itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured there.9 The Committee notes that the complainant was given the opportunity to substantiate and clarify his claims before the domestic authorities. However, on the basis of the evidence provided, it has not been possible to confirm the complainant’s allegations or to determine the existence of a personal, foreseeable, real and present risk of his being subjected to torture in the event of his return to his country of origin.10
In the light of the above considerations, and on the basis of all the information submitted to it by the complainant and the State party, including on the general situation of human rights in Uganda, the Committee considers that, in the present case, the information on file does not allow it to conclude that the complainant’s return to Uganda would expose him to a real, foreseeable, personal and present risk of being subjected to torture or that the authorities of the State party failed to conduct a proper investigation into his allegations.
The Committee, acting under article 22 (7) of the Convention, concludes that the deportation of the complainant to Uganda would not constitute a violation by the State party of article 3 of the Convention.