R (Nasseri) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wilson,Lord Justice Laws,Lord Justice Carnwath,The Master of the Rolls |
| Judgment Date | 14 May 2008 |
| Neutral Citation | [2008] EWCA Civ 466,[2008] EWCA Civ 464 |
| Docket Number | Case No: C4/2007/1785,Case No: B4/2008/0295 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 May 2008 |
[2008] EWCA Civ 464
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION
MR JUSTICE McCOMBE
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of The Rolls
Lord Justice Laws and
Lord Justice Carnwath
Case No: C4/2007/1785
CO/8303/2005
Mr Robert Jay QC and Ms L Giovannetti (instructed by The Treasury Solicitor) for the The Secretary of State for the Home Department
Mr Andrew Nicol QC and Mr M Henderson (instructed by Sonal Ghelani) for the Refugee Legal Centre (RLC)
Hearing dates : 17 March 2008
INTRODUCTION
This is the Secretary of State's appeal, with permission granted by Pill LJ on 3 December 2007, against a declaration of incompatibility granted by McCombe J on 2 July 2007 pursuant to s.4(2) of the Human Rights Act 1998 (“the HRA”). The judge thereby declared that paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) is incompatible with Article 3 of the European Convention on Human Rights (“ECHR”). McCombe J's judgment is now reported at [2008] 1 AER 411.
Paragraph 3(2) of Part 2 of Schedule 3 to the 2004 Act applies in every case where the Secretary of State proposes to return an asylum or human rights claimant to any one of twenty-eight States listed in paragraph 2 of Part 2 of Schedule 3 on the footing that that State is a third country which is responsible for determining the merits of the applicant's asylum or human rights claim. The twenty-eight States so listed are all the other Member States of the European Union together with Norway and Iceland. It is to be noted that the Secretary of State is empowered to add States to the list, but not to delete any State from it: paragraph 20 of Schedule 2.
Paragraph 3 of Part 2 of the Schedule provides in part:
“(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 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, and
(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 and in accordance with the Refugee Convention.”
The reference to “Convention rights” in paragraph 3(2)(b) is to the rights guaranteed by the ECHR and identified as Convention rights by s.1 of the HRA.
ECHR Article 3, as is well known, prohibits torture and inhuman or degrading treatment or punishment. The right to be protected against such treatment is one of the principal Convention rights which it is the court's duty under the HRA to uphold and to vindicate. The armoury for the duty's performance includes s.4(2), which provides:
“If the court is satisfied that the provision [sc. of primary legislation] is incompatible with a Convention right, it may make a declaration of that incompatibility.”
THE FACTS
The facts relating to the individual respondent (claimant in the court below) may be stated very shortly. He is a national of Afghanistan. He went to Greece, where on 16 December 2004 he made an asylum claim. That was refused, although we do not have the supporting documentation and the respondent was apparently not served with the decision. At length he left Greece and came to the United Kingdom which he entered unlawfully on 5 September 200When his presence was discovered he claimed asylum. The Secretary of State declined to deal with the substance of the claim and on 5 October 2005 set directions for his removal to Greece on the footing that Greece, whose authorities had failed to answer enquiries made of them by the Secretary of State, had by default accepted responsibility for examining the respondent's asylum claim pursuant to the Dublin II Regulations (whose detail I need not describe: essentially they preserve the rule that an asylum claim will be substantively decided by the first Convention State where the claimant arrives). On 8 October 2005, however, the Greek authorities gave formal notice of their acceptance of responsibility to examine the claim. On 12 October 2005 representations were made on the respondent's behalf to the effect that his removal to Greece would violate his rights under ECHR Article 3: not on the basis that he would suffer ill-treatment in Greece itself, but because of a claimed fear that the Greek authorities would return him to Afghanistan without properly considering his asylum and human rights case, and he would be ill-treated there. That was not accepted by the Secretary of State.
THE JUDICIAL REVIEW APPLICATION AND THE JUDGMENT BELOW
Judicial review papers were thereafter lodged and served, and the removal directions accordingly cancelled. Langstaff J granted permission to seek judicial review on 1 March 2006.
The application for a declaration of incompatibility pursuant to s.4 of the HRA was pleaded by amendment to the claim form, as I understand it well after the grant of permission; but as the judge stated (paragraph 6 of the judgment), the argument as to incompatibility had been clearly set forth in an earlier amendment (paragraph 22) to the Grounds, as follows:
“[The HRA] obliged [the Secretary of State] 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.”
A considerable portion of the judge's judgment is occupied by his discussion of the first point taken in the Secretary of State's defence, namely that the application for a declaration of incompatibility was and is academic, because there was no evidence of any real risk that the respondent would in fact be removed to Afghanistan by the Greek authorities without proper consideration of his claim to protection.
The judge described this argument as “circular and unsustainable” (paragraph 22). He stated (paragraph 23):
“The argument for the Claimant is that the Defendant's reliance on the deeming provision in the face of that challenge is incompatible with Article 3. In my judgment, the distinction between a challenge to removal and an argument as to compatibility is wholly artificial in the context of the present proceedings, since the incompatibility argument only arises in the context of a question relating to the defendant's desire in the first place to remove the claimant from the country.”
However the judge's rejection of the argument that the application was academic was closely linked with his conclusion on the substantive issue of incompatibility. As to that he held that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act altogether precluded the court, and the Secretary of State, from looking into the question whether in any given case a person's removal to one of the listed States would entail a real risk that his Article 3 rights would be violated; the ascertainment or investigation of such a risk was itself an obligation of the State under Article 3; and the preclusive effect of paragraph 3(2)(b) accordingly put the United Kingdom in breach of the Article. I should cite these passages from the judge's judgment:
“24. The provision in question could not be in clearer terms. It requires 'any person, tribunal or court', that has to determine whether an asylum applicant or applicant for human rights protection may be removed from this country, to treat Greece (among other states) as a place 'from which a person will not be sent to another state in contravention of his Convention rights'. It seems to me that Parliament has precluded both the Secretary of State and this court from considering any such question as to the law and practice on refoulement in any of the listed countries. The exercise which the defendant urges that I should undertake to demonstrate that the claim is academic is, therefore, an impermissible one.
…
39. … [I]n, my judgment, it is the Act itself that compels the breach of Article 3. Unlawful refoulement is itself a breach of Article 3. Failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive Article and it is that investigation that the deeming provision impedes.
40. In the present case, the deeming provision can only work to prevent an investigation of a potential breach of Article 3. It does so in absolute terms. In the words of the defendant's written argument it is 'mandatory' and '… the Secretary of State simply has no discretion to consider whether Greece will remove the claimant in breach of his human rights…'. This is not simply a denial of a remedy; it directs the defendant not to comply with the substantive...
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