Esmaiel Mohammed Pour and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 01 March 2016 |
| Neutral Citation | [2016] EWHC 401 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3872/2012 |
| Date | 01 March 2016 |
[2016] EWHC 401 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/3872/2012
Stephen Knafler QC and Claire Physsas (instructed by Duncan Lewis) for the Claimants
David Manknell, Matthew Donmall and Robert Harland (instructed by Government Legal Department) for the Defendant
Hearing dates: 16, 17, 18 and 19 June 2016
The Claimants are three Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus, which I shall call Cyprus for convenience, and who then came to the UK. They made asylum claims in the UK. In each case, and there is no connection between them, the SSHD found out or was told by them that they had claimed asylum in Cyprus. The SSHD refused to decide their claims substantively. Cyprus accepted or was deemed to have accepted responsibility for the Claimants under EU Council Regulation 343/2003 (Dublin II) or Council Regulation (EC) No 604/2013 of 26 th June 2013 ("Dublin III"). The SSHD certified the asylum claims on safe third country grounds, in 2013 and 2014, under paragraphs 3–5 of Part 2 to Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the 2004 Act, and certified the human rights claims as clearly unfounded, under paragraph 5(4) of Part 2 of the same Schedule. The human rights decisions now challenged were taken in May 2015, taking a very simplified version of the messy two year procedural history of the three judicial review claims. It was agreed by all parties that those decisions should be treated as superseding earlier human rights decisions.
They are together challenged on grounds common to all three Claimants, which is what brings them together before me, that (1) the decision to certify the human rights claims was irrational because, on the evidence, the SSHD should have concluded that there was at least a reasonable prospect that the First-tier Tribunal would find that they would be detained in flagrant breach of Article 5 ECHR, and (2) that the Court should conclude, contrary to what the SSHD had concluded, that, if returned to Cyprus, there was a real risk of each Claimant being refouled thence to Iran. In both grounds, reliance was placed on the ECHR, the EU Charter of Fundamental Rights,, the CFR, and EU Directives. The asylum certifications are challenged on the same amended grounds, provided shortly before the hearing. There is a separate Article 3 challenge by EP, who is said to have mental health problems, based on the risk of long and arbitrary detention.
The relief sought included a declaration that the inclusion of Cyprus in the list of safe third countries in paragraph 2 of Part 2 of Schedule 3 to the 2004 Act, or the obligation that it be treated as required by paragraph 3 was incompatible with the Human Rights Act 1998. The SSHD ought to have used her powers to decide the asylum claims substantively.
It was made clear but a few days before the hearing that it was not now being said that the evidence showed that there was a real risk of a breach of ECHR rights through the reception conditions in Cyprus for those not detained, or that there was a want of adequate medical treatment in or out of detention, including for EP. At the hearing, Mr Knafler QC for the Claimants made it expressly clear that certain other arguments were also no longer pursued: there was now no argument about general conditions of detention and Article 3, or about the interview process, or screening for the vulnerable, the quality of interpreters, access by the individual and his lawyer to his file, or the limit to points of law in the scope of appeals or applications to the Supreme Court.
There had also been a fourth case, due to be heard with these, concerning a Syrian national, who put forward the same grounds in relation to Syria. But that Claimant accepted, in relation to Syrian nationals, that those risks no longer applied; there was now a policy, at least, in Cyprus of granting some form of protection to Syrian nationals, no real risk of refoulement, and Syrian nationals were unlikely to be detained. The claim was withdrawn by consent, the Claimant paying costs.
The decisions
The relevant asylum certification decisions, EP's on 21 March 2013, SH's on 23 June 2014, and MG's on 13 March 2014, are short — simply reciting the acceptance of responsibility by Cyprus, which is deemed to be a safe country by the 2004 Act, and then certifying that the statutory conditions are met. There were no grounds for departing from the usual practice of not examining the substantive asylum application.
The relevant SSHD human rights decision in EP's case is dated 22 May 2015; the other two decisions, for SH, and GH, are dated 15 May 2015. The three letters are in materially the same terms on the common issues with which this case is concerned. EP alone raised a distinct issue — about his mental health. There are no specific individual issues in the other two cases.
Each human rights decision is carefully considered, and responds to very extensive material deployed before the SSHD, though, as the letters point out, that material was often deployed without the representations stating the point which the material was supposed to support, or where within the voluminous material the point could be found.
In each decision, the SSHD noted that EU Member States had not reached the conclusion that clear evidence existed of systemic deficiencies in Cyprus, giving rise to any substantial grounds for believing that those returned faced a real risk of being subjected to treatment contrary to Article 3 or Article 5 ECHR. Whilst some of the objective evidence submitted by the Claimant gave some cause for concern, "none of the reports conclude that removals to Cyprus should be suspended, nor do they reflect a consistent body of opinion such that the presumption of compliance should no longer be applied."
The SSHD also considered whether there was a real risk of a breach of Article 3 by reference to personal circumstances, dealing first with the risk of refoulement. This was rejected. Each letter is different in the factors considered, since the SSHD here was considering personal circumstances, but the conclusion was the same. Article 3 was then likewise considered in relation to reception conditions. EP's mental health and the risk of suicide were specifically considered. The SSHD concluded that, should EP be detained, he would receive adequate medical care in detention. But, as with the other two, there was no real risk of a breach of Article 3 in relation to reception conditions.
Possible detention in Cyprus was then considered, in relation to its likelihood, duration and remedies; this is where the Claimants' detention argument was focussed, rather than on detention conditions. EP had contended in his representations that all Dublin returnees were placed in detention. That did not appear to be made out.
Before me, however, the case had a narrower focus. All three Claimants had had a final decision on their asylum claims when in Cyprus. It was accepted that when they were returned, they could only make a fresh claim, because there was no outstanding claim to pursue. Accordingly, the discussion in the letter of detention in relation to Dublin returnees, whose claim had not been determined finally, is not now to the point.
Overall, the SSHD concluded that each Claimant had "not come close to rebutting the presumption that Cyprus will treat him in compliance" with the CFR, the Refugee Convention and the ECHR; nor on the specific facts of each case had any of them established a real risk of a breach of Articles 3 or 5 ECHR. The human rights claims were refused, and then had to be certified as clearly unfounded as the SSHD was not satisfied to the contrary; paragraph 5(4) in Part 2 of Schedule 3 to the 2004 Act. This precluded an in-country appeal.
The individuals
EP was 38, an engineering graduate, and former soldier. He claimed in the UK that he had been detained and then harassed by the police in Iran after allowing a man to hide from the police in his shop. He had left Iran for Cyprus in 2001 where at some point he claimed asylum. He lived with a friend and worked there. In 2006, he converted to Christianity. In 2011, his asylum claim in Cyprus was refused by the Asylum Service of the Ministry of the Interior, the AS. He made what was called an administrative appeal to the Refugee Reviewing Authority, RRA, which was dismissed in November 2011. The letter accompanying the decision says that this was the second review. The letter also says that the decision was annexed in Greek. But it has not been produced. There is no evidence, let alone documentary evidence, as to the basis of his claim in Cyprus for asylum or the reasons for its refusal.
He could have appealed to the Supreme Court within 75 days, as the RRA told him, but he says that he had insufficient money to do so, and lawyers advised him to leave the country instead. He claimed to have obtained travel documents from the Iranian Embassy in Cyprus, and to have returned to Iran in January 2012. He says that he practised Christianity there; the police found out, raided his house, seized his belongings and arrested him in January 2013, detaining him for three weeks before he was released. His brother helped him to leave via an agent in mid February 2013; he arrived in the UK on 1 March 2013 where...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2016-09-28, [2016] UKUT 452 (IAC) (R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; EU Charter Art 18) (IJR))
...in Pour The next in the series of decided cases to be considered is Pour (And Others) v Secretary of State for the Home Department [2016] EWHC 401 (Admin). This case concerned three Iranian nationals who travelled to the United Kingdom having unsuccessfully claimed asylum in the Republic of......
-
Tag Eldin Ramadan Bashir & Others v Secretary of State for the Home Department
...[2012] All ER (EC) 1011; [2012] 3 WLR 1374; [2013] QB 102 Pour, Hesari and Ghulami v Secretary of State for the Home DepartmentUNK [2016] EWHC 401 (Admin); [2016] All ER (D) 06 (Mar); [2016] Imm AR 721 R v Director of Public Prosecutions ex parte Kebeline and Others [1999] UKHL 43; [2000] 2......
-
R (on the application of Hassan and another) v Secretary of State for the Home Department (Dublin - Malta; EU Charter Art 18)
...64 (64) The next in the series of decided cases to be considered is Pour (And Others) v Secretary of State for the Home Department [2016] EWHC 401 (Admin). This case concerned three Iranian nationals who travelled to the United Kingdom having unsuccessfully claimed asylum in the Republic o......
-
R (Bashir and Others) v Secretary of State for the Home Department
...“litmus test for breaches of refugee obligations”: see the submissions of Counsel for the Secretary of State in Pour and Ors v. SSHD[2016] EWHC 401 (Admin) at [88]), it cannot be dismissed as an observation without significance. Notwithstanding that, it is not addressed at all in the decisi......