VT (Dublin Regulations: Post-Removal Appeal) Sri Lanka
| Jurisdiction | UK Non-devolved |
| Judge | McGeachy UTJ,Peter Lane,Mcgeachy,P Lane UTJ |
| Judgment Date | 30 August 2012 |
| Neutral Citation | [2012] UKUT 308 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 30 August 2012 |
[2012] UKUT 308 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Peter Lane
UPPER TRIBUNAL JUDGE Mcgeachy
For the Appellant: Ms S. Jegarajah, instructed by Messrs Patricks Solicitors
For the Respondent: Mr J. Auburn, instructed by the Treasury Solicitor
VT (Dublin Regulation: post-removal appeal) Sri Lanka
(1) An out of country appeal may be made to the First-tier Tribunal by a person who has been removed to an EU member State pursuant to the Dublin Regulation (Council Regulation 343/2003/EEC). However, paragraph 6 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 precludes the appellant from bringing the appeal on any grounds that relate to the Refugee Convention, including human rights grounds which effectively “overlap” with Refugee Convention issues. If the substance of a ground involves persecution for a Refugee Convention reason, paragraph 6 excludes that ground, whether or not the ground makes actual reference to the Refugee Convention.
(2) The effect of NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 (21 December 2011) is to require paragraph 6 of Schedule 3 to be “read down”, where the EU State to which the appellant has been sent pursuant the Dublin Regulation is shown to be one whose asylum processes are experiencing major operational problems, involving systemic flaws in the asylum procedure and reception conditions for asylum applicants, resulting in inhuman or degrading treatment of asylum seekers transferred to that State. In order to establish such a state of affairs, there needs to be material of the kind referred to at [90] of NS, such as regular and unanimous reports of international non-governmental organisations bearing witness to the practical difficulties in the receiving State, UNHCR high-level pronouncements and EU Commission reports.
(3) Where such a “systemic deficiency” in the asylum processes of the receiving State is found to exist, paragraph 6 of Schedule 3 is to be read down, so as to be compatible with EU law. In such circumstances, the Tribunal would, accordingly, allow the appeal, to the extent that the removal decision is held to be not in accordance with the law. It would then be for the respondent to secure the appellant's return to the United Kingdom, where his or her claim to be in need of international protection would be substantively considered by the respondent and, if necessary, determined on appeal.
(4) Unless such a systemic deficiency can be shown, paragraph 6 of Schedule 3 applies, without qualification. It is not permissible to read down that provision on the basis only of evidence concerning the individual appellant.
(5) The effect of (2) to (4) above means that the same area of enquiry applies in appeals governed by Schedule 3, where a systemic deficiency is being asserted, as it does in a judicial review of the respondent's decision to certify under paragraph 5 of Schedule 3, prior to a person's removal from the United Kingdom. Where the Administrative Court has specifically addressed the issue in such proceedings, prior to the person's removal, the Tribunal, in considering the out of country appeal brought by that person, should regard the Court's findings as a starting point and as likely to be authoritative on the issue of systemic deficiency in the receiving State, insofar as those findings were based on the same or similar evidence as that before the Tribunal.
This case involves the nature of an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 against a decision of the respondent to remove a person from the United Kingdom to a “safe country” listed in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, where the country concerned is a Member State of the European Union. In particular, this case concerns the relationship between Schedule 3 and Council Regulation 343/2003/EC, 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 so-called “Dublin Regulation”; sometimes called Dublin 2).
The relevant United Kingdom legislation is set out in the Schedule to this determination.
The appellant is a citizen of Sri Lanka who was born on 11 October 1978. He is at present in Romania where, at the date of the hearing in the Upper Tribunal, he was detained in a prison in Bucharest. As will be seen, the circumstances which have led the appellant to be in this position are, in many respects, the subject of disagreement between the parties to the present appeal. According to the appellant, he was experiencing persecution in Sri Lanka and, as a result, in 2010 the services of an agent were enlisted in order to remove the appellant from that country. In August 2010, the appellant found himself in Romania, for the first time. He says that this arose as a result of his agent handing him over to a gang of human traffickers, who decided to take him to Romania. It is common ground that the appellant was arrested by the Romanian authorities in August 2010 and that he claimed asylum in that country, following his arrest.
The appellant says that he was detained in Romania, where due to the weather, poor food and insanitary conditions, he became unwell. He was abused by fellow inmates. Prior to that, the police who arrested the appellant had attacked him and stolen his money. The appellant asserted that he was not given any opportunity to explain to the Romanian authorities why he feared persecution in Sri Lanka. This was notwithstanding the fact that, according to the appellant, he had scars on his body as a result of his ill-treatment in his home country.
It is also common ground that, at some point, the appellant left Romania. According to the appellant's first witness statement, this is what happened:–
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“14. Having felt unwell, been left without any money in my pocket, having no way to tell my difficulties to anyone in my language, due to the hard time given [me] by the inmates, having no-one to listen to my complaints I felt that I was going to die.
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15. The agent who pushed me in to Romania thought I may report him to the police about his human trafficking business. He therefore without my consent or knowledge smuggled me into Sri Lanka.”
On return to Sri Lanka, the appellant asserts that the authorities arrested, detained and tortured him. The appellant's uncle, however, was able to strike “a deal with an officer and secured my release by an inside deal” (paragraph 17). Once again fearing for his life in Sri Lanka, the appellant secured the assistance of another agent, which resulted in the appellant's arrival in the United Kingdom on 17 January 2011.
According to the respondent, when the appellant was asked at his asylum screening interview on 31 January 2011 about the circumstances leading to his arrival in the United Kingdom, the appellant said that he had flown from Sri Lanka, via Dubai. He also said that he had not claimed asylum or been fingerprinted in any other country outside Sri Lanka. The appellant told the interviewer that he was living in the United Kingdom with an uncle and elder brother (the latter having been granted leave to remain under the immigration rules in November 2010).
The respondent took the appellant's fingerprints. It was established that these matched those of a person fingerprinted in Romania on 1 September 2010, who was recorded as having claimed asylum in Romania the following day.
On 9 February 2011, the appellant was further interviewed by the respondent. The appellant said that he had been in Romania for about two weeks before he had been fingerprinted but that he had then flown back to Sri Lanka about a week later with the help of an agent, arriving in that country on 15 September 2010.
On 15 February 2011 the respondent sent a formal request to the Romanian authorities, pursuant to the Dublin Regulation, requesting those authorities to accept responsibility for considering the appellant's asylum application. Also on 15 February, the respondent received information from the appellant's representative, indicating that the appellant claimed to have been tortured by the Sri Lankan army. The respondent considered the appropriateness of the appellant's detention and concluded that it was still appropriate, as he was being removed to Romania, not Sri Lanka. It was also noted that the appellant failed to mention in his asylum screening interview that he had been tortured.
On 28 February 2011, the Romanian authorities formally accepted responsibility for the appellant's asylum application.
On 1 March 2011, the respondent informed the appellant by letter that the Romanian authorities had accepted that Romania was the State responsible for examining the appellant's application for asylum. The respondent's letter stated that, by virtue of paragraph 3(2) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Romania was to be treated as a place:–
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“(a) where your life and liberty will not be threatened by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and
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(b) a place from which you will not be sent to another State in contravention of your Convention rights; and
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(c) from where you will not be sent to another State otherwise than in accordance with the Refugee Convention.”
The letter continued by stating that the respondent “will normally decline to examine the asylum application substantively if there is a...
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Upper Tribunal (Immigration and asylum chamber), 2012-08-30, [2012] UKUT 308 (IAC) (VT (Dublin Regulation: post-removal appeal))
...a:link { so-language: zxx } AI Upper Tribunal (Immigration and Asylum Chamber) VT (Dublin Regulation: post-removal appeal) Sri Lanka [2012] UKUT 00308 (IAC) THE IMMIGRATION ACTS Heard at Field House Determination Promulgated On 2 July 2012 ………………………………… Before UPPER TRIBUNAL JUDGE PETER LAN......