R (EM (Eritrea)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 18 November 2011 |
| Neutral Citation | [2011] EWHC 3012 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 November 2011 |
| Docket Number | Case No: CO/163/2009 |
[2011] EWHC 3012 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kenneth Parker
Case No: CO/163/2009
David Chirico (instructed by Wilson Solicitors LLP) for the Claimant
Lisa Giovannetti QC (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 12 October 2011
Introduction
The Claimant is an Eritrean national who claimed asylum/international protection in the United Kingdom on 11 November 2008. The Secretary of State's inquiries revealed that the Claimant had previously claimed asylum in Italy. The Italian authorities have accepted that, pursuant to Council Regulation No. 343/2003 (commonly referred to as the Dublin II Regulation or "Dublin II"), they are responsible for considering the Claimant's asylum/international protection claims.
On 22 December 2008 the Secretary of State notified the Claimant that she proposed to return him to Italy and on 7 January 2009 she notified him that she had certified as "clearly unfounded" his claim that his human rights would be breached in Italy. The Claimant seeks to challenge those decisions. However, in substance, this is a challenge to the Secretary of State's maintenance of the decisions of 22 December 2008 and 7 January 2009 in the light of representations and material submitted after those decisions.
By section 77 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") a person who has made an asylum claim may not be removed from, or required to leave, the United Kingdom pending determination of that claim. However, Paragraph 4 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("the 2004 Act") disapplies section 77 of the 2002 Act where the person is to be removed to one of a number of listed States (which include Italy), if the Secretary of State has certified that, in his opinion, the person is not a national or citizen of the State to which he is to be removed. In the present case, the Secretary of State has issued such a certificate, and the Claimant accepts that he is not a national or citizen of Italy.
Where an applicant claims that he faces a real risk of Article 3 ECHR ill-treatment within the listed State, there is an in-country right of appeal to the Tribunal under section 92(4)(a) of the 2002 Act unless the Secretary of State certifies the claim to be "clearly unfounded", and the Secretary of State is required to certify claims involving removal to a listed county "unless satisfied the claim is not clearly unfounded" (Paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act).
There is no statutory provision regulating the withdrawal of a "clearly unfounded" certificate, but the Secretary of State accepts that she has the power to withdraw or revoke such a certificate, and would generally do so if subsequent material or representations satisfied her that the claim was not clearly unfounded.
There appears to be no dispute between the parties as to the legal test the Court should apply on a Judicial Review of a "clearly unfounded" certificate. Such a certificate can be issued if "on any legitimate view" the Claimant's human rights claim would fail on appeal: R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276, by Lord Hope at paragraph 34; R(L) v SSHD [2003] EWCA Civ 25 and ZT (Kosovo) [2009] 1 WLR 348. In most cases (and it is agreed that this is no exception) the Court is as well placed as the Secretary of State to decide that issue. Thus, rather than adopting a Wednesbury approach, the Court should simply consider for itself whether, on any legitimate view, the Claimant's human rights appeal would fail. The Claimant points out that the Court is deciding a threshold issue, in this case whether, on any legitimate view of the material, a putative appeal to the First Tier Tribunal would be bound to fail.
In this context the Secretary of State accepts that if the evidence demonstrated, in accordance with relevant legal principles, a real risk that asylum seekers such as the Claimant faced a protracted period of street homelessness, without recourse to social welfare benefits, and without recourse to an effective remedy after removal to Italy, the clearly unfounded certificate should not stand.
The Applicable Legal Principles
In KRS v UK [2008] ECHR 1871 the European Court of Human Rights ("ECrtHR") dismissed as "manifestly unfounded" an application contending that the UK would be in breach of Article 3 ECHR if it returned the Applicant to Greece under the provisions of the Dublin II Regulation. The Court said:
"… the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States' additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives.
…The Court recalls in this connection that Greece, as a Contracting State, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right of any returnee to lodge an application with this Court under Article 34 of the Convention (and request interim measures under Rule 39 of the Rules of Court) both practical and effective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant. On that account, the applicant's complaints under Articles 3 and 13 of the Convention arising out of his possible expulsion to Iran should be the subject of a Rule 39 application lodged with the Court against Greece following his return there, and not against the United Kingdom.
… the objective information before [the Court] on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the Court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court." (emphasis added)
The Grand Chamber of the ECrtHR has relatively recently given further consideration to the correct approach to Article 3 ECHR in cases concerning the Dublin II Regulation in MSS v Belgium & Greece [2011] ECHR 108 (GC) ("MSS"). Both parties to this judicial review agreed that MSS was the crucial authority for present purposes. Of particular relevance are paragraphs 344–359 which I set out in full.
" 344. The Court has already stated its opinion that the applicant could arguably claim that his removal to Afghanistan would violate Article 2 or Article 3 of the Convention (see paragraphs 296–297 above).
345. The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the K.R.S. case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case.
346. The Court disagrees with the Belgian Government's argument that, because he failed to voice them at his interview, the Aliens Office had not been aware of the applicant's fears in the event of his transfer back to Greece at the time when it issued the order for him to leave the country.
347. The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.
348. The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.
349. The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).
350. Added to this is the fact that since December 2008 the European asylum system itself has entered a reform phase and that, in the light of the lessons learnt from the application of the...
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