ECtHR - S.H. v. United Kingdom, Application No. 19956/06

In the present case the Applicant alleges that he would be at risk of imprisonment and ill-treatment in Bhutan, both as an involuntary returnee and as someone who has made representations about the human rights situation there while out of the country. The Court observes that Bhutan is a closed country and that little information is available concerning its human rights situation. In particular, it notes that the UNHCR does not have access and is unable to monitor returns. Consequently, there is a paucity of objective country information which would either confirm or contradict the Applicant's allegations.

The Court finds that the evidence provided cannot be considered in isolation. Instead, it must be considered against the background of discriminatory treatment afforded to the ethnic Nepalese in Bhutan on account of their ethnicity. In Moldovan v. Romania (no. 2), nos. 41138/98 and 64320/01, § 111, ECHR 2005‑VII (extracts) the Court held that acts motivated by racial discrimination will constitute an aggravating factor in considering whether treatment falls within the concept of inhuman and degrading treatment. The country information reports indicate that the ethnic Nepalese in Bhutan are required to obtain Non-Objection Certificates in order to access essential services, such as healthcare, education and employment. There are also restrictions on their freedom of assembly, freedom of association and their freedom of movement. Moreover, a significant number of ethnic Nepalese have been declared non-nationals and over 100,000 have been forced into exile. Amnesty International has expressed concerns that the sustained and cumulative discrimination against the ethnic Nepalese in southern Bhutan could amount to persecution and severe risk to the right to life. Therefore, although none of the experts have been able to predict precisely what would happen to the Applicant on return, on balance the Court is satisfied that there are substantial grounds for believing that there is a real risk that the Applicant would be subjected to ill-treatment contrary to Article 3 if returned to Bhutan. Nevertheless, in the absence of any such evidence, the Court must accept that if returned to Bhutan, there is a real risk that the Applicant would be subjected to treatment contrary to Article 3 of the Convention.

There would accordingly be a violation of Article 3 of the Convention if the Applicant were removed to Bhutan.