Petition Of Imi, Mg And Ea For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2016] CSOH 102 |
| Year | 2016 |
| Published date | 15 July 2016 |
| Date | 15 July 2016 |
| Court | Court of Session |
| Docket Number | P980/14 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 102
P980/14
P253/15
P452/15
OPINION OF LORD BOYD OF DUNCANSBY
In the petition of
IMI, MG and EA
Petitioners;
for
Judicial Review
Petitioners: Dewar QC, Caskie, Jones; Drummond Miller LLP
Respondents: McIlvride QC. Pirie; Office of the Advocate General
15 July 2016
Introduction
[1] These three petitions arise out of the operation of the Dublin II (Council Regulation (EC) No.343/2003) and Dublin III (Council Regulation (EC) 604/2013) Regulations against the backdrop of the increasing strain on EU Member States as a result of the large number of migrants entering the European Union in recent years. Dublin II and Dublin III lay down the criteria and mechanisms for determining the Member State responsible for an application for asylum lodged in one Member State by a third country national. In essence they provide that the Member State responsible is the Member State where the asylum seeker first had contact with the authorities. Dublin II applies to applications lodged before 1 January 2014 and Dublin III to applications lodged after 1 January 2014. In all three petitions the responsible Member State is Italy.
[2] Each petition raises a number of discrete issues. However the proceedings before me concerned the certification by the Secretary of State that the petitioners’ claim that their removal to Italy would be a breach of their rights under article 3 of the European Convention of Human Rights is clearly unfounded.
[3] Both parties submitted notes of argument which have been invaluable in framing this opinion and I thank counsel for their presentation.
The petitioners
[4] Apart from the factual background of when the petitioners came to the United Kingdom and their status the petitions are relatively silent on the individual circumstances of each of the petitioners. Nevertheless the note of argument for the petitioners sets out some background material which appears vouched in the accompanying documents. I record them here so far as relevant for these purposes.
[5] The first petitioner is IMI. He is a Sudanese national. He was detained on 9 September 2013 having entered the UK illegally. He claimed asylum on the same day. The Secretary of State established that he had been in Italy and had been granted asylum there. A take back request was made on 13 September 2013 and accepted by the Italian authorities on 25 September 2013. Removal directions were made but cancelled as a result of the judicial review in England and Wales. On 15 May 2014 the Secretary of State considered the petitioner’s claim that returning him to Italy would breach article 3 of ECHR. That was refused and the claim was certified as clearly unfounded on 9 June 2014. It is accepted that by 9 September 2013 the Italian authorities had granted his application for asylum. Accordingly he would return to Italy as a beneficiary of international protection (BIP). IMI claims to have spent around three and a half months in Italy as a refugee living with a friend for two weeks and then on the streets.
[6] The second petitioner is MG. He is an Eritrean. He was detained on 14 October 2013 having entered the UK illegally. He claimed asylum on the same day. It was established that the Member State responsible was Italy and the Secretary of State made a take back request under Dublin II which was accepted on 30 October 2013. The asylum claim was refused on third country grounds on 22 November 2013 and the direction set for his removal. A judicial review in England and Wales against the removal was concluded on 11 November 2014. The Secretary of State issued a refusal direction and certified as clearly unfounded the petitioner’s claim that to remove him to Italy would be a breach of his article 3 rights under ECHR on 17 December 2014. MG claims to have stayed in Italy for only 5 days. He did not claim asylum there.
[7] The third petitioner is EA. He is a Nigerian national. He was detained in November or December 2014 having claimed asylum on arrival. The Secretary of State established that he had been in Italy. He claimed asylum in Italy on 2 July 2014. The Italian authorities had not determined the application prior to his leaving Italy. A take back request was made on 2 January 2015 and accepted on 19 January 2015. The petitioner made representations that his removal to Italy would breach article 3 ECHR. The Secretary of State rejected these submissions and certified the claim as clearly unfounded on 8 April 2015. EA claims to have suffered assault and rape at the hands of non-state actors in a reception camp in Italy. He also suffers from a depressive order.
[8] All three petitioners are single men.
Certification
[9] The Secretary of State has the power to remove from the United Kingdom in accordance with removal directions (a) a person who arrives in the United Kingdom and is refused leave to enter: Immigration Act 1971 (“1971 Act”), Schedule 2, paragraph 8 and (b) a person who has no leave to remain in the United Kingdom: Immigration and Asylum Act 1999 (“the 1999 Act”), section 10. Section 77 of the Nationality, Immigration and Asylum Act (“the 2002 Act”) provides that a person may not be removed from the United Kingdom while his asylum claim is pending. Paragraph 4 of Part II of Schedule 3 to the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 (“the 2004 Act”) disapplies that provision where removal is to one of a list of safe countries specified in paragraph 2, provided that the Secretary of State certifies that in her opinion the person is not a citizen or national of that state a “Third Country Certificate)”. Paragraph 3(2) provides that each country on the list:
“shall be treated as a place
(a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) from a which a person will not be sent to another state in contravention of his Convention rights and
(c) from which a person will not be sent to another state otherwise than in accordance with the Refugee Convention”.
Italy is on the list: paragraph 2(n).
[10] A person may appeal to the First-tier Tribunal (“FTT”) against a decision of the Secretary of State (a) before 6 April 2015 to remove him from the United Kingdom on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998; 2002 Act, sections 82 and 84 or (b) after 6 April 2015 to refuse his human rights claim on the ground that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act; 2002 Act, sections 82 and 84 (as amended by Part II of the Immigration Act 2014).
[11] Section 92 of the 2002 Act provides for each of these appeals to be brought from within the United Kingdom. Paragraph 5(4) of Part II of Schedule 3 to the 2004 Act however disapplies that provision (with the effect that the appeal must be brought from outside the United Kingdom) where the Secretary of State certifies that the appellant’s human rights claim is clearly unfounded a “Clearly Unfounded Certificate”). It requires the Secretary of State to issue a Clearly Unfounded Certificate unless she is satisfied that a human rights claim is not clearly unfounded. Accordingly the Secretary of State may issue a Clearly Unfounded Certificate only if the human rights claim could on no legitimate view succeed in the FTT; R (EM (Eritrea)) v Secretary of State for the Home Department [2014] AC 1321 at paragraph 6. The test that the FTT would apply in cases such as the petitioners’ is whether substantial grounds have been shown for believing that there is a real risk that the person removed will suffer treatment contrary to article 3; R (EM) (Eritrea)) at paragraphs 3 and 58.
[12] Where removal is to a state listed in paragraph 2 of Part II of Schedule 3 to the 2004 Act, the FTT must address that test against the backdrop of a “significant evidential presumption” that the state will comply with its obligations under article 3 and EU law in relation to asylum procedures and reception conditions for asylum seekers and beneficiaries of international protection (“BIPs”). The presumption however should not operate to stifle the presentation and consideration of evidence that the consequence of forced return would be a violation of article 3 ECHR. Nor should it be required that in order to rebut the presumption it must be shown as a first and indispensable requirement that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker; R (EM (Eritrea)) paragraph 41.
[13] The parties are agreed that in a judicial review of a Clearly Unfounded Certificate the following principles of law apply.
(a) The court is as well placed as the Secretary of State to decide whether on any legitimate view a human rights claim could succeed in the FTT. Therefore it should do so, rather than reviewing the certificate on Wednesbury grounds; R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) at paragraph 15; R (Medhanye) v Secretary of State for the Home Department [2011] EWHC 3012 (Admin) at paragraph 6; R (EM (Eritrea)) at paragraphs 69-70; R (MS) v Secretary of State for the Home Department [2015] EWHC 1095 (Admin) at paragraph 97.
(b) The court “must examine the foreseeable consequences of sending a (petitioner) to the receiving country bearing in mind both the general situation there and the (petitioner’s) personal circumstances including his or her previous experience”; R (EM (Eritrea)) paragraph 70.
(c) The court should take the facts at their highest in a petitioner’s favour. Lord Kerr at paragraph 8 in R (EM (Eritrea)) used the phrase “reasonable height”. Mr Dewar questioned what that meant. But I think it means that any inferences that are to be drawn from the evidence must be reasonable and not perverse. It does not relieve the court of its task of considering whether...
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