Upper Tribunal (Immigration and asylum chamber), 2016-09-28, [2016] UKUT 452 (IAC) (R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; EU Charter Art 18) (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice McCloskey , Upper Tribunal Judge O’Connor |
| Status | Reported |
| Date | 28 September 2016 |
| Published date | 14 October 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 18 July 2016 |
| Subject Matter | Dublin – Malta; EU Charter Art 18) (IJR |
| Appeal Number | [2016] UKUT 452 (IAC) |
R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; EU Charter Art 18) IJR [2016] UKUT 00452(IAC)
In the Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Notice of Decision
The Queen on the application of Ismail Mohamed Hassan
and Omar Hassoon Karada
Applicants
v
Secretary of State for the Home Department
Respondent
Decision of the President, The Honourable Mr Justice McCloskey and Upper Tribunal Judge O’Connor: the application for judicial review is refused
On this application for judicial review and following consideration of the documents lodged by the parties and having heard Mr R Drabble QC and Ms A Radford (of counsel), instructed by Laurence Lupin solicitors on behalf of the Applicants and Mr D Manknell (of counsel), instructed by the Government Legal Department on behalf of the Respondent at hearings conducted on 15 June and 18 July 2016
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There have been significant developments in Malta during recent years. While there may be imperfections in the Maltese asylum decision making processes, these are not sufficient to preclude returns under the Dublin Regulation and, in particular, do not amount to a breach of Article 18 of the EU Charter.
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While Article 18 of the EU Charter confers rights of a procedural nature, the evidence does not establish that these will be infringed in the event of either of the Applicants pursuing a fresh asylum claim in Malta.
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The limitations of the mechanisms available under Maltese law for challenging refusal of asylum decisions do not infringe Article 18 of the EU Charter.
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In judicial review, decisions of the Administrative Court are not binding on the Upper Tribunal: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.
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Per curiam: Article 18 of the EU Charter provides an avenue for challenging transfer decisions under the Dublin Regulation.
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Per curiam: Where a Dublin Regulation transfer decision is challenged under Article 18 of the EU Charter, the ECHR “flagrant breach” standard does not apply. Rather, the test is whether there is a real risk of a breach of Article 18.
JUDGMENT
Handed down on 28 September 2016
McCLOSKEY J
INDEX
Chapter No Title Paragraph
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Introduction (1) – (2)
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Factual Matrix (3) – (12)
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The Secretary of State’s Decisions (13) – (15)
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Expert Evidence (16) – (27)
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Relevant Maltese Legislation (28) – (32)
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The Objective Evidence (33)
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Legal Framework (34) – (38)
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The Parties’ Respective Cases (39) – (49)
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Consideration (50) – (73)
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Conclusions (74) – (95)
Appendix 1: Résumé of Objective Evidence
Appendix 2: Asylum and Immigration (Treatment of Claimants etc.) Act 2004,
Schedule 3, Part2
GLOSSARY
The Charter: The Charter of Fundamental Rights of the European Union.
The CEAS: The Common European Asylum System
The Dublin Regulation: Regulation (EU) No 604/2013 of the European Parliament and the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person.
JRS/JRSM: The Maltese Jesuit Refugee Service.
RAB: Refugee Appeals Board of Malta.
RC: Refugee Commissioner of Malta.
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INTRODUCTION
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Article 18 of the Charter of Fundamental Rights of the European Union (hereinafter the “Charter”) occupies centre stage in these proceedings. Under the rubric “Right to asylum”, it provides:
“The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”
Article 18 forms the cornerstone of the Applicants’ challenge. The Respondent, the Secretary of State for the Home Department (the “Secretary of State”), has decided that the Applicants must be transferred under the provisions of the current Dublin Regulation (Council Regulation EC No 604/2013) from the United Kingdom to the island of Malta, being the EU state which both first entered following a journey from Libya in 2011. The central pillar of the Applicants’ cases, which have been advanced without distinction, is that the implementation of this decision would result in a violation of their rights under Article 18 of the Charter.
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The essence of the riposte on behalf of the Secretary of State is that the decision of the Upper Tribunal in R (Hagos) v Secretary of State for the Home Department [2015] UKUT 0271 (IAC) (“Hagos”) and that of the High Court in R (Hamad and Ararso) [2015] EWHC 2511 (Admin) (“Hamad & Ararso”) are determinative of the issues. It is further contended that only a breach of either Article 4 or Article 19 of the Charter, neither of which is asserted, can prevent the proposed removal of the Applicants. The battle lines are thus drawn.
(II) FACTUAL MATRIX
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The factual matrix of each challenge is essentially uncontroversial and, as appears from the two summaries which follow, the Applicants have much in common. Furthermore, while the facts asserted by the Applicants are not formally admitted and there are no formal concessions on behalf of the Secretary of State, the proceedings have been conducted on the basis that there is no substantial factual controversy. While this, of course, is not binding on the Tribunal, having subjected the Applicants’ assertions to appropriate scrutiny, we find no reason for rejecting or disbelieving any material aspect of their accounts.
Mr Hassan
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The first of the two Applicants, Mr Hassan, surrendered to police in the United Kingdom on 02 August 2014. He volunteered that he had entered the United Kingdom illegally. This event constitutes the origins of these proceedings. A check of the Eurodac Database confirmed that the Applicant’s fingerprints matched those taken from him on 29 April 2011 in Malta, on 26 November 2012 in Switzerland and on 18 January 2013 in Denmark. The Applicant had made a claim for asylum in all three countries.
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Mr Hassan claims to be a national of Sudan, with a date of birth of 20 June 1982. He further claims to be a member of the Berti tribe from Darfur, which is persecuted by the Sudanese Government as it is perceived to be an ethnic African tribe. This has resulted in the deaths of substantial numbers, including (it is said) this Applicant’s brother. This Applicant claims to have been unjustifiably detained and then tortured by the Sudanese police. He asserts significant physical and mental injuries in consequence.
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Mr Hassan claims to have escaped to Libya, where he remained for a period of months, at which stage he paid for his transition to Europe by boat, arriving in Malta where, he claims, he was detained and his fingerprints were forcibly taken from him. With the assistance of an unknown fellow detainee a form, evidently designed to record asylum claims, was completed. The Applicant claims to have no understanding of what was written and asserts that no legal advice, interpreter services or other facilities were available. This was followed by an interview which, in terms, he claims was perfunctory and inadequate as he could not answer questions about the contents of the completed form. Then there was a second interview, attended by an interpreter followed by an essentially anodyne consultation with a lawyer. Mr Hassan learned at some unspecified stage that his asylum application had been refused.
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Mr Hassan was confined in close detention conditions in Malta for approximately one year. He asserts significant inadequacies, including substandard facilities, a lack of privacy and a failure to respect the basics of human dignity in the conditions in which he was detained. Following his release, he was accommodated in shipping containers in an open detention centre where he remained for about one year. He at no time received legal, social, medical or other...
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