R (on the application of Hagos) v Secretary of State for the Home Department (Dublin Returns - Malta) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,O'Connor,O'Connor UTJ,McCloskey J |
| Judgment Date | 30 April 2015 |
| Neutral Citation | [2015] UKUT 271 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 April 2015 |
[2015] UKUT 271 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
In the matter of an application for judicial review
Mr Justice McCloskey, President of the Upper Tribunal and Upper Tribunal JudgeO'Connor
On this application for judicial review and following consideration of the documents lodged by the parties and having heard Mr A Gilbert (of Counsel), instructed by Laurence Lupin Solicitors on behalf of the Applicant and Mr Z Malik (of Counsel) instructed by the Government Legal Department on behalf of the Respondent at hearings conducted on 14 January and 14 April 2015
R (on the application of Hagos) v Secretary of State for the Home Department (Dublin returns — Malta) IJR
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1) While the Maltese system for the reception, processing and treatment of asylum seekers has certain frailties and shortcomings, these fall measurably short of fundamental failings or near collapse, particularly in circumstances where the consistent trend is one of progressive improvement and fortification. It suffers from no systemic deficiency.
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2) The transfer of a young male adult in good physical health, though suffering from mental health problems and asserting a risk of suicide, from the United Kingdom to Malta under the Dublin Regulation will not necessarily violate Article 3 ECHR, Articles 18 or 47 of the EU Charter of Fundamental Rights, Article 33 of the Refugee Convention or the Qualification Directive.
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3) (Per curiam) The removal of a person to another state contravenes Article 5 ECHR only if the evidence establishes a real risk of a flagrant breach of this provision.
Handed down on 29 April 2015
This judgment, to which both members of the panel have contributed, consists of six chapters:
i. Introduction.
The Applicant is a national of Eritrea, aged 27 years. His application for judicial review was the subject of a “rolled up” direction by Upper Tribunal Judge O'Connor, dated 06 October 2014. The proceedings have evolved since they were initiated, in May 2014. Initially, the target of the Applicant's challenge was the Respondent's decision of 01 April 2014 certifying the Applicant's asylum claim on third country and clearly unfounded grounds, in tandem with the subsequent, associated making of removal directions dated 08 May 2014. The proceedings have proved to be organic and, in their subsequent evolution, a further decision of the Respondent, dated 07 January 2015, has overtaken the initial decisions and is now the new target of the Applicant's amended challenge. By the terms of its most recent, updated decision the Respondent has affirmed her initial decision.
We summarise the history in the following way:
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(a) The Applicant avers that in 2002 he and his family left Eritrea due to persecution by the authorities on account of their Protestant Christian faith.
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(b) Between 2002 and 2011 the Applicant lived in Sudan. He left this country and travelled to Libya because, he avers, those without a work permit were being pursued by the authorities.
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(c) In February 2012, when he was attempting to leave Libya by boat, he was arrested and detained subsequently for 20 days.
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(d) On 26 June 2012, having escaped from custody, he travelled on a boat which had Italy as its destination but, due to fuel shortage, did not proceed beyond the island of Malta in the Mediterranean Sea.
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(e) On 26 August 2012 the Applicant's fingerprints were taken by the Maltese authorities.
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(f) During the entirety of his sojourn in Malta, the Applicant was detained in a detention centre, in the course of which he spent around one month in a mental health hospital.
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(g) On 19 December 2013 the Applicant was released from detention and given temporary accommodation. Due mainly to the intolerable conditions he left and travelled to the United Kingdom via Italy and France.
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(h) On 04 March 2014 he arrived in the United Kingdom, claiming asylum.
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(i) On 13 March 2014 the Respondent formally requested Malta to accept responsibility for the determination of the Applicant's asylum claim, in accordance with the Dublin III Regulation. On 01 April 2014 Malta was deemed to have accepted such responsibility and on 10 April 2014 it did so formally.
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(j) On 01 April 2014 the Respondent certified the Applicant's case under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
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(k) Representations opposing the Applicant's removal to Malta were then made by his solicitors. By letter dated 05 May 2014 the Respondent, relying particularly on the decisions in NS v SSHD, Cases C-411/10 and C/493/10 and R (EM – Eritrea) v SSHD [2014] UKSC 12 conveyed its decision certifying the Applicant's human rights claim as clearly unfounded under the aforementioned statutory regime.
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(l) On 08 May 2014 the Respondent decided to remove the Applicant to Malta and directions were made for this to take place on 19 May 2014.
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(m) On 16 May 2014 this application for judicial review was initiated.
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(n) By order of Upper Tribunal Judge Kebede dated 23 June 2014, permission was refused on the papers.
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(o) Pursuant to the Applicant's request for oral renewal of his permission application, Upper Tribunal Judge O'Connor ordered, on 06 October 2014, that a “rolled up” hearing be convened.
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(p) On 07 October 2014 further representations on behalf of the Applicant were made to the Respondent.
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(q) On 29 October 2014 the Applicant's further representations were rejected by a further decision of the Respondent.
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(r) The Applicant then sought to amend his grounds of challenge.
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(s) The Respondent's response was to file revised grounds of defence, accompanied by a supplementary decision letter dated 07 January 2015 which, in effect, maintained the original decision, albeit this became the new, operative decision.
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(t) The Tribunal subsequently granted permission to the Applicant to amend his grounds.
Pursuant to the evolution and amendments noted above, the Applicant's case, in its reconfigured incarnation, is encapsulated in the final paragraph of his pleading in these terms:
“Applying anxious scrutiny, it cannot be said that [the Applicant's] claim is ‘clearly unfounded’, or that no rational First-tier Tribunal Judge could conclude that removal to Malta was without a real risk of harm to [the Applicant] and/or a denial of his fundamental rights ie that the claim fails to show a single ‘legitimate view’ upon which a Tribunal might consider this mentally ill claimant faced a real risk.”
We shall examine the particulars and outworkings of this omnibus pleading infra.
Focusing firstly on the Applicant's condition and traits, it is convenient to begin with the report of Professor Katona, a Consultant Psychiatrist, which was commissioned for medico-legal purposes in the course of these proceedings and is dated 25 November 2014. It is appropriate to preface this with certain excerpts from the Applicant's statement, dated 23 April 2014, the context being the Applicant's detention in Malta following the refusal of his asylum claim:
“I was devastated and severely depressed … I decided to drink from bleach in an attempt to commit suicide because I could not live that life any longer. I lost consciousness and the next thing I recall is waking up in a hospital (Mater Dei Hospital) where I was treated and given some kind of support …………..
When I got better I was asked whether I was going to try to commit suicide and I responded that I would if they took me back to detention so I was transferred in [sic] a mental health hospital (Mount Carmel Hospital) where I stayed for about a month ……
I cannot go back to Malta. I have suffered too much there …..
I have nowhere to go, no place to stay in Malta. I need support and assistance because of my mental health issues ……”
This witness statement is now of one year's vintage. There is no more recent statement.
The opinion expressed in Professor Katona's report is based on a single interview of the Applicant, conducted on 03 November 2014, together with certain “ subjective documents”, which consisted of the Applicant's statement, the judicial review claim form, the solicitor's pre-action protocol letter, the Respondent's reply, the formal removal documents and the record of the asylum screening interview. The history recounted by the Applicant included an assertion that following his initial detention upon arrival in England he felt stressed and received certain unspecified medication which helped him to sleep. This improvement in his sleep continued and he remained physically well. However, he felt “ increasingly low in mood”. Following some five months in detention he was released. He claimed that being unable to work was “ very stressful”. He reported some recent improvement in his mood following the re-establishment of contact with some friends in London. He claimed that if forcibly returned to Malta he would kill himself.
Professor Katona diagnosed that the Applicant is suffering from Post-Traumatic Stress Disorder (“PTSD”). The components of this diagnosis included an assessment of moderate depressive symptoms, severe trauma symptoms and very severe distress. The Professor assessed the Applicant's suicide risk thus:
“[His] suicide risk would be high in the UK once he had been informed that he was not going to be allowed to stay and would remain so during the removal process and once he was back in Malta or in Eritrea. His suicide risk in the UK would become high if he were detained …..
If [he] were removed to Malta and was unsupervised in a detention setting then his suicide risk would be very high. His suicide risk under such circumstances could be reduced to some extent if...
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