R (Saeedi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN |
| Judgment Date | 31 March 2010 |
| Neutral Citation | [2010] EWHC 705 (Admin),[2008] EWHC 673 (Admin) |
| Docket Number | CO/5366/2007,Case No: CO/8660/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 March 2010 |
[2008] EWHC 673 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Sullivan
CO/5366/2007
Mr J Walsh (instructed by Fisher Meredith) appeared on behalf of the Claimant
Mr R Giovannetti (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As approved)
NB Transcribed without the aid of all documents
On 6 November 2007, Beatson J directed that this application for permission to apply for judicial review should be listed for oral hearing on notice to the defendant. He did so because he said in his observations:
“The defendant submits this is not a case affected by the Nasseri problem. The court will want to be satisfied that reliance was not placed on paragraph 3 of Part II to Schedule 3 to the 2004 Act but to the merits of the matter. Otherwise it is for consideration whether this case should be stayed pending the outcome of the appeal against McCombe J's decision [in Nasseri] or whether, in the light of section 4(6) of the Human Rights Act it should not.”
The background to the matter very briefly is that the claimant is a national of Afghanistan. The defendant wishes to remove her and her two children to Greece under the terms of the Dublin Regulation. The claimant made an application for asylum in this country on 17 November 2006. She was interviewed and said that she had arrived in the United Kingdom by air that day using a forged document, unsure of the identity of the port at which she had entered. She said when she was interviewed that she had spent three months travelling to the United Kingdom. She did not know which country she travelled through. She also said that she had not had her fingerprints taken previously.
Her fingerprints were matched by the Euro database to someone who previously entered Greece illegally and had been apprehended by the Greek authorities on 10 November 2006. The defendant formally requested the Greek authorities to accept responsibility for consideration of the claimant's asylum claim under the Dublin Regulation. The Greek authorities accepted responsibility in January 2007 for the claimant and for her two children.
The claimant's asylum application was refused and certified on safe third country grounds under paragraph 3 in Schedule 3 to the Asylum and Immigration Treatment of Claimants etc. Act 2004. Following various abortive attempts to remove the claimant, the claimant's then solicitors in correspondence raised a human rights claim. The defendant responded saying that that had been certified as clearly unfounded.
Further correspondence ensued and these proceedings were then commenced shortly before the decision of McCombe J in Nasseri. In that decision McCombe J gave a declaration of incompatibility to the effect that paragraph 3 of Schedule 3 of the 2004 Act was incompatible with the Convention in that it prevented the Secretary of State, and indeed the court, from considering whether someone who had left Greece after he had made an asylum claim would be refouled if he was returned to Greece.
Although he was invited, on behalf of the Secretary of State, to consider evidence as to whether or not there was in fact a real risk of refoulement, he declined to do so, saying that effectively paragraph 3 prevented both the Secretary of State and the court from considering such material.
The effect of Nasseri was considered by Underhill J in the case of R (on the application of) Zego v the Secretary of State for the Home Department Crown Office 11319/2007, 4 February 2008. The critical passage in Underhill J's judgment is as follows:
“… the question of incompatibility with the claimant's Convention rights only arises if the effect of the deeming provisions is to preclude the court from considering what would otherwise be an arguable claim that he would face refoulement in breach of his rights under Article 3 or the Refugee Convention. If there is no arguable risk, those rights are not engaged. Mr Lee submits that even the exercise of considering whether there is an arguable case is precluded by paragraph 3, but I do not agree: the deeming provisions only bite if there is a question in the first place. I do not consider that, on the evidence before me, the claimant has reached that threshold.”
He then considered the evidence in that case.
There are two elements to this particular claimant's claim. First of all, the risk of refoulement, secondly the treatment that she says that she and her children received in Greece, and would be likely to receive if returned there.
So far as the treatment she herself received, it appears to amount to this, as explained in a letter from her then solicitors on 8 May 2007, that when she entered Greece on route to the United Kingdom the police mistreated her. She states that she was taken in for questioning when she disembarked from a bus with her children. Pausing there, there would be nothing exceptional about that. Then there is this sentence:
“She states she was beaten and pushed and the children were frightened.”
In the various decision letters that have been written on this case, as correspondence as passed to and fro between the parties, the defendant has cast doubt on the credibility of that assertion in the light of the claimant's less than truthful answers when she was interviewed on claiming asylum in this country.
However, it seems to me that even taken at its highest it is really impossible to elevate that past treatment into an arguable Article 3 claim. While I entirely accept Mr Walsh's submission that a beating can be carried out with such severity and/or in such circumstances as to amount to an infringement of someone's rights under Article 3, there is nothing to suggest that that was the case here. The claimant has been repeatedly told that she has failed to particularise her allegations, and has not provided any evidence in support of them. There has been ample opportunity to assert, if it was the fact, that the beating she suffered was so severe as to approach the Article 3 threshold. Thus, on the face of it, there is not an arguable Article 3 claim that would have been precluded by paragraph 3 of Schedule 3 to the 2004 Act.
So far as the conditions for asylum seekers generally are concerned, the defendant has taken steps to contact the Greek authorities. They have provided certain assurances as to the procedures that will be adopted. On the face of it, subject to the issue of refoulement, there is again nothing that might arguably suggest a potential Article 3 claim that is being precluded by the provisions of paragraph 3.
I turn, therefore, to the issue of refoulement. It is clear that in at least one respect the claimant's position is distinguishable from that of the claimant in Nasseri in that the claimant in this case has never claimed asylum in Greece. She is not in the position of someone who having claimed asylum in Greece, is then treated by virtue of having left Greece as having effectively abandoned that claim for asylum.
The most recent ground of defence from the defendant, while maintaining the assertion that she is not required to consider whether there is any risk of refoulement from Greece as a result of paragraph 3, Schedule 3, continues:
“The defendant does not accept, even if she were required to consider it, that there is a risk of refoulement of the claimant if she is removed to Greece. The claimant has failed to identify any evidence that given her particular circumstances that she faces any risk of refoulement and/or any other exceptional factors applicable to her particular circumstances. In effect, therefore, the claimant is seeking to challenge her removal, although there is no evidence that she faces a real risk of refoulement in Greece. In the absence of any evidence of a real risk of refoulement, there can be no basis for concluding that the person faces a real risk of being sent elsewhere in breach of Article 3. In coming to this conclusion the defendant has also taken into account the fact that the Greek authorities are at present not returning Afghan nationals to Afghanistan.”
When I asked Mr Walsh what the evidence was in this claimant's case that there was any risk of refoulement, he responded, firstly, that that was an impermissible enquiry on the part of the court in the light of McCombe J's judgment in Nasseri. Secondly, if and in so far as the court was permitted to embark on such an investigation, he directed my attention to a number of passages which suggested that in respect of certain asylum seekers in certain particular circumstances, for example, undocumented migrants arriving on Crete, or people who stowed away on ships and landed on Greek territory, and so forth, had been effectively removed from Greece without any consideration of their rights to asylum.
Not only is that evidence of a relatively general kind, it is plain that in so far as it identifies a problem it is a problem in circumstances which are very far removed from the circumstances of the present case. There is nothing to suggest that someone who is returned from this country under the Dublin Regulation, following formal acceptance by the Greek authorities of the obligation to determine an asylum claim, will be treated otherwise than in accordance with the Refugee Convention.
Thus, in my judgment, no question of potential incompatibility with the claimant's rights under either the Refugee...
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