R (Nasseri) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice McCombe |
| Judgment Date | 06 May 2009 |
| Neutral Citation | [2007] EWHC 1548 (Admin) |
| Date | 06 May 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8303/2005 |
[2007] EWHC 1548 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
the Honourable Mr. Justice Mccombe
Case No: CO/8303/2005
Mr. Mark Henderson (instructed by Refugee Legal Centre ) for the Claimant
Miss Lisa Giovannetti & Mr. Alan Payne (instructed by Treasury Solicitor ) for the Defendant
Hearing dates: 19 – 21 June 2007
Crown Copyright ©
Mr. Justice McCombe:
(A) Introduction
In this case the Claimant seeks a declaration under Section 4 of the Human Rights Act that the provisions of paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act"), applied by Section 33 of that Act, is incompatible with a "Convention right" arising under the European Convention of Human Rights. Paragraph 3 provides as follows:
"(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed —
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), 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 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."
By paragraph 2, the relevant part of Schedule 3 applies to the States
there listed. Greece is one such State.
The Claimant is a national of Afghanistan who entered the United Kingdom illegally on 5 September 2005, concealed in a lorry. When detected he claimed asylum. He claimed to be a minor but was assessed by an Immigration Officer as being over 18 years of age. He was then detained. His fingerprints were found to match those of a person who, in December 2004, had claimed asylum in Greece. The Immigration Service put in train procedures for inviting Greece to take responsibility for the Claimant's asylum claim and for his return to Greece accordingly under the terms of the Dublin Regulation. In late September or early October 2005 the Claimant consulted the Refugee Legal Centre ("RLC") which sought his release from detention because he was a minor. The Defendant rejected the Claimant's assertion that he was a minor. The Defendant refused to release the Claimant and on 3 October 2005 the Defendant informed the Claimant by letter that Greece had accepted responsibility for the asylum claim. It was further stated that, by virtue of paragraph 3(2) of Part 2 of Schedule 3 to the 2004 Act, Greece was to be treated as a place where his life and liberty would not be threatened within the meaning of the Refugee Convention and from which he would not be sent to another State in breach of his rights under the Human Rights Convention. On 5 October 2005 Removal Directions were set for the removal of the Claimant to Greece on 14 October.
By letter of 12 October to the Immigration and Nationality Directorate the RLC contended that removal of the Claimant to Greece would be a breach of article 3 of the Convention because the Claimant had not and would not have access to fair asylum determination processes there. The RLC referred in the letter to a note dated November 2004 from the United Nations High Commission for Refugees ("UNHCR") pointing out that asylum seekers who left Greece and subsequently returned may be subject to immediate removal without substantive examination of their claims. The UNHCR requested that sending states would obtain assurances from the Greek authorities that such persons would be given fair examination of their claims. In the alternative it was suggested that sending States could assume responsibility for such claims themselves as foreseen by Article 3(2) of the Dublin II Regulation.
The Defendant responded by letter of 13 October stating as follows:
"A State may breach Article 3 by expelling a person where substantial grounds are shown for believing that the person faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the receiving country. A "real risk" requires more than a mere possibility. The potential ill-treatment must attain a minimum level of severity. Where the source of the ill-treatment is not at the hands of the receiving State a high threshold is applied.
The practices and procedures of Member States are routinely and closely monitored, including Greece, in the implementation of the ECHR in order to be satisfied that Greece's obligations are fulfilled. Your client will be able to raise with the authorities in Greece any concerns that he may have under the provisions of the 1951 United Nations Refugee Convention and the ECHR, and he will not be subjected to inhuman or degrading treatment in Greece. "
On that day, the present proceedings, initially only for judicial review of the defendant's decision to proceed with removal, were brought, and Mr. Justice Penry-Davey granted an injunction restraining the defendant from removing the Claimant from the jurisdiction pending determination of the claim. On 24 October the London Borough of Hillingdon assessed the claimant to be a minor, as he had contended at the outset. For the purposes of the present proceedings that assessment is not disputed and it has been assumed for the purposes of this hearing that he is now 17 years old or thereabouts.
(B) The development of the rival contentions and the procedural history
The grounds of claim served by the Claimant on 18 November 2005, following the receipt of the defendant's letter of 13 October already mentioned, stated that the defendant did not appear to dispute that the provisions of the 2004 Act now in issue were inconsistent with the Human Rights Act 1998 in so far as it required or entitled the defendant to remove the claimant without substantive consideration of whether the removal would violate Article 3 of the Convention. The solicitors pointed to the passage in the defendant's letter asserting that practices in Greece were routinely and closely monitored in order to be satisfied that that country's obligations were fulfilled which they considered indicated the defendant's willingness to assess the case "on the merits".
In the summary grounds of defence served on 25 November 2005 the defendant argued that the provisions of paragraph 3 of Schedule 3 to the 2004 Act (hereinafter called "the deeming provision") prevented further scrutiny of the decision. It was stated that "the Defendant takes the view that he is entitled to regard Greece as a safe third country" by reason of those provisions. In the light of that stance the claimant served amended grounds of claim dated 1 December 2005. In paragraph 22 of those grounds the claimant asserted that,
"The Human Rights Act obliged him to make a proper and lawful decision on C's human rights claim. It would be incompatible with human rights for D to argue that the deeming provision mandated (or entitled) him to shut his eyes to any evidence that may emerge at any time to the effect that the removal of any particular claimant will place the United Kingdom in breach of the ECHR. The result of such a construction would be that Parliament had prohibited D from acting in accordance with Article 3, the most fundamental and absolute of the Convention rights, by acting upon evidence that the proposed removal would lead to indirect refoulement."
Although formal amendment was not made to the claim form at that stage, to claim the declaration of incompatibility now sought, the argument as to incompatibility was, in my judgment, clearly stated.
On 1 March 2006 Mr Justice Langstaff granted permission to apply for judicial review. The defendant sought time for the lodging of detailed grounds of defence to deal with the incompatibility claims.
On 18 April 2006 the defendant wrote a further letter which it was said replaced the letter of 13 October 2005, the letter challenged in these proceedings. The new letter invoked the deeming provision and continued:
"5. The Secretary of State is aware of the concerns expressed by the UNCHR, upon which your client seeks to rely, regarding asylum practices and procedures in Greece. He is also aware, however, that the UNCHR Athens continued to work closely with the Greek authorities and closely monitor asylum claims and procedures in Greece. It is also his understanding, through contact with the Dublin Unit in Athens, that an asylum seeker returned to Greece under the Dublin ll Regulation will be given an opportunity to present any further information to the Greek authorities in support of his asylum claim and the authorities will give full and proper consideration to such information within the context of Greece's international obligations."
Detailed grounds of defence were then eventually served in July 2006. Paragraph 30 of those grounds maintained that the deeming provisions,
"…implement an absolute bar preventing the Secretary of State from considering whether countries such as Greece will return asylum seekers in contravention to their Human Rights."
In paragraph 35 the defendant claimed that he…,
"…simply has no discretion to consider whether Greece will remove the Claimant in breach...
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