The Queen (on the Application of Saseendra Elayathamby) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 11 August 2011 |
| Neutral Citation | [2011] EWHC 2182 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 August 2011 |
| Docket Number | Case No: CO/10187/2010 |
[2011] EWHC 2182 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: CO/10187/2010
Ms Claire Physsas (instructed by Satha & Co) for the Claimant
Ms Lisa Giovanetti (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 29–30/6/2011
This is an application for judicial review to quash the Defendant's decision dated 13 September 2010 to certify the Claimant's asylum claim pursuant to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("the 2004 Act"), on grounds that he may safely be removed to a third country, Cyprus, and to quash removal directions given to remove the Claimant to Cyprus. The Defendant has also indicated that the Claimant's asylum claim is to be treated as certified as "clearly unfounded" under paragraph 5(4) of Schedule 3 to the 2004 Act.
The Claimant is a Tamil who is a national of Sri Lanka. He claims that he left Sri Lanka in 2008 in circumstances which caused him to fear for his life there and travelled to Singapore. Shortly afterwards, he moved to Malaysia. While there, he approached the office of the United Nations High Commissioner for Refugees ("the UNHCR") who examined his case and formed the opinion that he had good grounds for claiming that he would face persecution if returned to Sri Lanka and should therefore, under the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 ("the Refugee Convention"), be accorded protection against return to Sri Lanka. The UNHCR issued the Claimant with an identity card which provided that he should be given protection against removal to Sri Lanka ("the UNHCR card").
Under the Refugee Convention, it is for Contracting States to determine whether to accord refugee status in relation to persons claiming asylum in their territories. The issue of a UNHCR card by the UNHCR does not oblige any State to accord its bearer refugee status in its territory. However, the Refugee Convention recognises that the UNHCR has a general supervisory role in relation to conventions for the protection of refugees and provides that Contracting States are obliged to co-operate with him.
The Preamble to the Refugee Convention includes the following recital:
"Noting that the United Nations High Commissioners for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognising that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner…"
Article 35(1) of the Refugee Convention provides:
"The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees…in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention."
In the light of this duty of co-operation, it appears that the holder of a UNHCR card who presents that card to the authorities of a Contracting State in whose territory he wishes to claim asylum can expect those authorities to give careful consideration to whether he should be accorded protection under the Refugee Convention against refoulement to his country of origin, in line with the opinion of the UNHCR. A UNHCR card may also be relevant to the position of its holder in other ways. In particular, if a person has been recognised by the UNHCR as deserving of protection under the Refugee Convention against refoulement (and so has been issued with a UNHCR card), but finds himself in a receiving State where he again faces a substantial risk to his life or of persecution, the UNHCR may request some other State which can offer him asylum and with which he has the most significant connection to accept him onto its territory and, once there, to provide him with protection under the Refugee Convention.
Where the UNHCR makes such a request, the person in relation to whom it is made is sometimes referred to as a "mandate refugee" (presumably on the basis that he is a person in respect of whom the UNHCR has given a mandate or instruction to the receiving State to consider receiving him onto its territory and according him protection there). In the policy of the Defendant to which this case relates ("the mandate refugee policy"), a rather wider definition of "mandate refugee" is given: "A mandate refugee is a person in a third country, who has been recognised as a refugee by, and given the protection of, the UNHCR". This definition covers anyone, such as the Claimant, who is the holder of a UNHCR card.
Although he obtained a UNHCR card while he was in Malaysia in 2009, the Claimant did not claim asylum from the Malaysian authorities. According to him, he did not feel secure there and so decided to leave in February 2010. There is no good objective evidence that the Claimant actually faced any serious risk of ill-treatment in Malaysia. He did not approach the UNHCR to complain that he did not feel secure there, nor did he ask the UNHCR to request any other State to accept him as a refugee.
The Claimant travelled through Thailand and Syria to Cyprus, without making a claim for asylum in any of those countries. In Cyprus, he used a forged passport to obtain a transit visa for travel to the United Kingdom. He travelled to the United Kingdom by air, and claimed asylum upon arrival in April 2010.
On 6 May 2010, the United Kingdom sent a formal request to Cyprus under Article 9 of Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national ("the Dublin Regulation") to accept responsibility for considering the Claimant's asylum claim. This was on the basis that Cyprus had issued the Claimant with a transit visa through its territory and therefore was the relevant EU Member State with responsibility to consider his claim for asylum (Article 9(2) of the Dublin Regulation). On 23 June 2010, however, that request was rejected by Cyprus. On 29 June 2010 the United Kingdom challenged that rejection, but on 13 July 2010 that challenge was again rejected by Cyprus. On 25 August 2010, the United Kingdom sent a further challenge to Cyprus. This time, on 13 September 2010, Cyprus accepted that responsibility lay with it under the Dublin Regulation to consider the Claimant's asylum claim.
On the basis of this acceptance of responsibility by Cyprus, the Defendant has not proceeded to examine the merits for the Claimant's asylum claim herself. Instead, she made the decision of 13 September 2010 now under challenge that the Claimant should be removed to Cyprus, where the Defendant maintains that his asylum claim would be considered and any protection due to be afforded to him under the Refugee Convention would be provided.
It is also relevant that Cyprus is a party to the European Convention on Human Rights ("the ECHR"). The Defendant maintains that Cyprus can also be expected to provide proper protection for the Claimant's rights under the ECHR, including any right he may be able to establish against refoulement to Sri Lanka relying on Article 2 (right to life) or Article 3 (prohibition of torture). The Defendant also maintains that Cyprus can be expected to respect any rights the Claimant may have under Article 3 in relation to the conditions of detention in Cyprus if he is sent there by the Defendant and any rights he may have under Article 3 with respect to the living conditions he may have to endure while he is present in Cyprus.
Against these contentions by the Defendant, the Claimant maintains that although it is supposed to provide these protections, Cyprus does not in fact do so. He submits that if he is sent to Cyprus, he will be at substantial risk of refoulement to Sri Lanka in breach of his right to protection under the Refugee Convention and Articles 2 and 3 of the ECHR; that he will be at substantial risk of detention in inhumane conditions in breach of his rights under Article 3 of the ECHR; and that, if he is not detained, he will not be provided with proper welfare support and appropriate living conditions, so that he will be at substantial risk of breach of his rights to be protected from inhumane treatment under Article 3 of the ECHR on that basis as well. On this basis, the Claimant submits that if the Defendant sends him to Cyprus, that would involve a breach of his corresponding Convention rights under the Human Rights Act 1998 ("the HRA"). I refer to these different aspects of the Claimant's case as "the refoulement argument", "the conditions of detention argument" and "the living conditions argument", respectively. The Claimant relies in particular on MSS v Belgium and Greece, ECtHR Grand Chamber, judgment of 21 January 2011.
So far as concerns the Claimant's refoulement argument, the combined effect of paragraphs 2(c) and 3 of Part 2 in Schedule 3 to the 2004 Act (which contains provisions regarding removal of asylum seekers to safe countries, in particular as contemplated by the Dublin Regulation) is that the Defendant is required by primary legislation to treat Cyprus as a State which will properly safeguard the Claimant's rights under the Refugee Convention and under the ...
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