Musud Dudaev, Kamila Dudaev and Denil Dudaev v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Burnett |
| Judgment Date | 12 June 2015 |
| Neutral Citation | [2015] EWHC 1641 (Admin) |
| Date | 12 June 2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13703/2013 |
[2015] EWHC 1641 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Rt Hon Lord Justice Burnett
The Hon Mrs Justice Thirlwall
Case No: CO/13703/2013
Stephanie Harrison QC and Greg Ó Ceallaigh (instructed by Messrs Birnberg Peirce) for the Claimants
David Manknell (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 18 and 19 May 2015
The claimants are Chechens whose applications for political asylum were refused by Sweden. Having exhausted their appeal rights in Sweden they chose not to make an application to the Strasbourg Court for interim measures under rule 39 of the Strasbourg Court Rules ["rule 39"] to prevent their removal to Russia pending determination of any application they might bring in Strasbourg under the European Convention of Human Rights ["the Convention"]. Instead, they stowed away in the back of a lorry and entered the United Kingdom illegally. They made an application for political asylum and humanitarian protection in this country. The Home Office declined to determine the applications. They asked the Swedish authorities to accept the return of the claimants pursuant to the common arrangements in the European Union for asylum claims under Council Regulation 343/2003 ["the Dublin II Regulation"]. The Swedish authorities have accepted their obligations under Dublin II. The claimants resist their return to Sweden on the grounds that there is a real risk that they will be refouled to Russia in breach of the 1951 Refugee Convention ["the Refugee Convention"], in breach of articles 2 and 3 of the Convention, and in breach of the equivalent rights found in the European Union's Charter of Fundamental Rights ["the Charter"].
The claimants' case proceeds under two broad headings. First, Miss Harrison QC argues that Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ["the 2004 Act"], in so far as it provides for an irrebuttable legal presumption that Sweden will not refoul returned asylum seekers in breach of the Refugee Convention or the Convention, is incompatible with European Union law and should thus be disapplied. Alternatively she invites this court to rewrite it within proper interpretative boundaries. Were either course followed, she submits that the statutory scheme for appeals should apply, with the result that the claimants would have an in-country right of appeal to the First-tier Tribunal where the substance of their claim that Sweden would refoul them in breach of its international obligations could be examined. She makes subsidiary arguments under European Union law to the effect that the statutory provisions offend the European Union principles of effectiveness and equivalence. Secondly, Miss Harrison submits that the material now available demonstrates that there are substantial grounds for believing that the Swedish authorities would return the claimants to Russia without providing them with an opportunity to present the totality of the material available to them, or to seek orders from either the Swedish courts or Strasbourg Court to suspend removal pending further consideration.
Mr Manknell, on behalf of the Secretary of State, submits that the statutory scheme is not incompatible with European Union law. It is silent on that matter. On the facts he submits that the evidence produced by the claimants fails by a wide margin to displace the presumption, recognised in domestic, Convention and European Union law, that Sweden can be relied upon to abide by its legal obligations.
The Background Facts
The first claimant, Masud Dudaev, is the son-in-law of the late President Dzochar Dudaev, who emerged as the leader of Chechnya following the collapse of the Soviet Union. Masud Dudaev is married to the President's daughter, Dana Dudaev. They bore the same surname before marriage, which is relatively common in Chechnya. President Dudaev was assassinated in April 1996. The second and third claimants are their eldest children born respectively in 1994 in Grozny and 1995 in Lithuania. They have two other children born in 1997 and 2009. The elder of the two was born in Lithuania. The Russian passport of the youngest says she was born in Russia but it is the first claimant's case that she was in fact born in Turkey. His wife and two younger children left Sweden after the family failed to secure political asylum there and now reside in Germany.
The first claimant says that he held senior positions in the government of his father-in-law and, after the assassination, was prominent in Chechen politics. The second Chechen war began in August 1999. The family left Russia in 2000 initially for Azerbaijan, but spent time in Lithuania and then Turkey, where they lived until 2010. They left Turkey because of assassinations of, and threats to, prominent Chechens. The first claimant says that he remained a prominent supporter of Chechen rebels and opposition groups. In particular, he had a close association with Ahmed Zakayev, who was granted political asylum in the United Kingdom in 2003. He is the leader of a Chechen government in exile. Mr Zakayev has been the subject of assassination plots since his arrival here. The claimants have been living with him in London after being granted bail pending the determination of these proceedings.
The first claimant says that he is just the sort of prominent Chechen opposition figure who would face serious risk if returned to Russia on account of his close connection to President Dudaev and Mr Zakayev. Others in a similar position have been granted asylum all over Europe.
The Swedish Proceedings
The claimants' family first sought asylum in Sweden in June 2010 but were returned to Lithuania under Dublin II. They appealed the decision to return them but it was upheld at two levels of appeal. It appears that the claimants did not remain for long in Lithuania but travelled back to Sweden via Belarus. They arrived in Sweden on 18 September 2011 and made applications for asylum on 28 September. The Lithuanian authorities say that the family were deported to Russia, but they deny this. In the ensuing consideration of the applications, the Swedish authorities said they had no reason to doubt what they had been told by their Lithuanian counterparts.
The European Union scheme under Dublin II does not oblige a member state to return asylum claimants to a safe third country within the European Union or European Economic Area. Article 3(2) enables any member state to choose to entertain the claim itself. On this occasion that is what the Swedish authorities did. The procedure adopted in Sweden enables applicants to place material before the decision maker, which is called the Migration Board, and includes multiple interviews on behalf of the board. Legal assistance is provided at the expense of the state. An experienced immigration lawyer, Tore Ludwigs, acted on behalf of the claimants.
The decision of the Migration Board, of which there is a translation in the papers, considers the applicable law and deals in detail with the facts. It recounts the substance of the claim, including the first claimant's account of his involvement in Chechen politics, and refers to a number of documents he supplied in support. However, the Migration Board did not consider that the documents provided confirmation of the activities claimed. It regarded it as conceivable that he was involved in some political activity and referred to the submission put before them by Mr Ludwigs. It noted some contradictory evidence and referred to the absence of internet material supporting the claim. Given the prominence claimed by Mr Dudaev and the detail of his involvement in particular events they expected there to be such material. It is apparent that the Migration Board conducts its own researches and inquiries. For example, it noted an absence of information about alleged peace negotiations in which the first claimant said he was involved. It said:
"As a result of the lack of credibility that the Migration Board has found in the family's case, the Board is of the opinion that the information that has emerged concerning Masud's political activities is unlikely to be true."
It then dealt with specific claims of threats, which it found unconvincing and also noted that various stamps in the family members' domestic Russian passports (which are loosely akin to identity documents) suggest that they were in Russia at times when they suggested they were elsewhere fearing for their safety. The international passports were issued at times which were inconsistent with the suggestion that they feared the Russian authorities. Masud's driving licence has similarly been issued when he said he was not in Russia. The Migration Board noted the explanations put forward by the family to explain what it considered to be significant oddities and inconsistencies in their accounts and documentation, including their denial that they were returned from Lithuania to Russia. It was the cumulative effect of a series of doubts about the veracity of the family's account which led to the refusal of their claims. The result was a decision to deport the family but with a period of grace for four weeks to allow voluntary departure.
The written decision informed the family of the right of appeal to the Administrative Migration Court in Stockholm. They exercised that right and once again were represented by Mr Ludwigs at...
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