R ES v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeAnthony Elleray
Judgment Date22 November 2017
Neutral Citation[2017] EWHC 3224 (Admin)
Date22 November 2017
Docket NumberCO/4389/2015

[2017] EWHC 3224 (Admin)




Royal Courts of Justice


Anthony Elleray QC

(Sitting as a Deputy Judge of the High Court)


The Queen on the Application of ES
Secretary of State for the Home Department


Ms C Kilroy (instructed by Duncan Lewis) appeared on behalf of the Claimant.

Mr B Tankel (instructed by the Government Legal Department) appeared on behalf of the Defendant.



This is a claim for judicial review. The claimant (“ES”) seeks a declaration that he was unlawfully detained by the defendant (“SSHD”) between 2 nd September and 1 st October 2015. That detention was in anticipation of his removal to Hungary which SSHD had directed on 28 th August 2015 pursuant to her refusal on 2 nd June 2015 of his asylum claim made on 29 th April 2015.


The Secretary of State in refusing the claim “certified” his claim on “Safe Third Country” grounds. In context, SSHD presumed Hungary was a safe country.

Judicial review


On 14 th September 2015 ES issued his judicial review claim. He sought to review the decision refusing his asylum claim and to certify Hungary as a safe third country on 2 nd June 2015. He then sought to review consequentially the decision to direct on 28 th August 2015 his removal to Hungary and his consequential detention on 2 nd September 2015.


ES advanced four grounds of challenge which were closely linked. The first was that SSHD was and should have been aware of:

“systemic deficiencies in the Hungarian asylum procedure and reception conditions which meant that there was a risk of a violation of his Article 3 ECHR rights on return to Hungary as a result of a) reception conditions in Hungary, b) defects in Hungary's asylum procedures giving rise to the risk of refoulement or ‘chain refoulement’, and c) breaches by Hungary of EU law.”


It follows, he has contended, that the decision to certify his claim and to set removal directions for 15 th September 2015 in reliance on that certification was unlawful.


A second, possibly alternative ground, is that the decision on 2 nd June 2015 was drafted before the impact of the significant increase in asylum seekers had become apparent before the international refugee crisis reached its height over the summer of 2015 and before changes in Hungarian asylum law in July 2015.


It is contended that the decision of SSHD to serve the certification decision in September 2015 and to set removal directions based on it failed to take any account of those developments and was thus unlawful for failing to take into account relevant considerations and for being Wednesbury unreasonable.


Third, it is contended that the removal would have been unlawful because his removal directions were served only three working days before his removal in breach of relevant policy of SSHD.


Fourthly, it is argued that detention pending removal was unlawful for the same reasons that his removal was unlawful.


On 12 th October 2015 SSHD filed summary grounds of defence. She contended that ES's grounds of challenge were without merit. In particular, she relied on domestic and European cases. She refers to the judgment on 21 st December 2011 of the Grand Chamber of the ECJ in the joined cases of NS v SSHD and the principles there established that it should be presumed that the treatment of asylum seekers in member states complies with the requirements of the EU charter, the Geneva Convention and the ECHR but that that “presumption” might be rebutted by sufficient relevant evidence which established that the transferring member state cannot be unaware that “systemic deficiencies” in the asylum procedure and in the reception conditions of asylum seekers in that member state give rise to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment contrary to Art.3.


Consideration was given in that case to the nature and source of evidence of “systemic deficiencies” required to rebut the presumption.


The summary grounds refer at domestic level to courts here having considered in detail on a number of occasions the question of whether removals pursuant to the Dublin Regulation constitute a breach of fundamental rights. They cite from the decision of the Supreme Court in EM (Eritrea) et al v SSHD [2014] UKSC handed down on 19 th February 2014 and reference there made by the Supreme Court to key principles. Those include the need to establish by way of breach the likelihood that the removal would involve the asylum seeker partaking in “systemic failings”. Their Lordships referred to the significant evidential presumption that Member States would comply with Convention obligations but that the presumption could be rebutted on production of “Sufficient evidence to show that it would be unsafe for the court to rely on it”, and “the practical realities of what happens on the ground to show sufficiently clearly that there is a real risk of Article 3 ill-treatment on return” paragraphs 67/68.


The summary grounds recite from para.56 of the judgment of Sales J, as he then was, in Elathamby v SSHD [2011] EWHC 2182, where he said:

“In my assessment, although the reports of these local organisations which are produced for publication in the public domain are entitled to weight […] they can carry considerably less weight than the considered report of body such as the UNHCR, the ECRI, LIBE and the US State Department.”


Those grounds also refer to a judgment of Beatson J, as he then was, in R (Toufighy) v SSHD [2012] EWHC 3004 (Admin), where he concluded:

“87. […] The evidence comes nowhere near establishing that if [the applicant] is returned to Hungary, he will risk the sort of systemic exposure to humiliating, degrading or inhuman conditions that meet the minimum threshold to constitute a breach of Article 3.”


At para.35 of the summary grounds of defence SSHD said that it was not accepted that the decision to remove ES in this case was unlawful:

“The applicant was detained by the defendant in order to facilitate his lawful” — I emphasise lawful — “removal from the UK in line with current policy concerning the detention of those liable for removal from the UK.”


SSHD maintained that her decision to refuse and certify the applicant's asylum and human rights claims on safe third country grounds were lawful, as was the applicant's detention.


At para.33 of the summary grounds SSHD set out her recognition that “.. the situation for asylum seekers in Hungary is changing quickly at that time and that she does keep the situation there under review to ensure that she is aware should any systemic deficiencies occur in Hungary as a result of the unprecedented influx of migrants.”


On 9 th December 2015 his Honour Judge Denyer QC sitting as a High Court Judge, gave permission to seek judicial review. At para.1 he said:

“In the light of the Defendant's admission in para.[33] of the AoS that the status of Hungary is a safe Dublin 3 compliant country is being kept under review and that further guidance will be issued, it seems that the Claimant's position is at least arguable.”

He gave his case management directions including that detailed grounds for contesting the claim and any written evidence should be served within 35 days of service of that order.


I have noted that the refusal of the certification of ES's asylum claim on safe third country grounds was decided on 2 nd June 2015. On 3rd June there was a refusal and certification on those grounds in the case of a Mr Ibrahimi and on 4th June there was a similar refusal and certification in the case of Mr Abasi. That led to a test case being considered by Green J on 21 st and 22 nd March 2016 and 27 th June 2016 and to a judgment on 5 th August 2016. The decision was in case numbers CO/5201/2015 and CO/5067/2015, and the decision has the neutral citation number [2016] EWHC 2049. The hearing of those cases and their weight in the judgment in them led to an earlier hearing of this case on 13 th April 2016 being vacated by consent and an order that in effect this ES's claim should await the handing down of judgment in the Ibrahimi and Abasi cases. That order was made on 24 th March 2016.


Green J in the cited cases concluded at para.16:

First, there is a significant risk that the Claimants would be at risk of refoulement if removed to Hungary. I therefore accept the Claimants' submissions in this respect. In each of the States concerned the UNHCR, NGOs and other bodies (such as the European Parliament) whose views command respect have identified systemic and/or operational risks in the asylum and judicial systems which casts into serious doubt the likelihood of the Claimants, were they to be removed to that State, being able effectively to advance their claims to international protection. As such they face a risk of refoulement in those states, which risk applies to transfer to Iran. That is the...

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