FOURTH SECTION
Application no. 24239/09
Javad NASSERI
against the United Kingdom
lodged on 8 May 2009
STATEMENT OF FACTS
The applicant, Mr Javad Nasseri, is an Afghan national, who was born in 1990 and lives in Hayes. He is represented before the Court by Mr H. Arnott of Bhatt Murphy Solicitors, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant travelled from Afghanistan to Greece in December 2004 and claimed asylum. That application was rejected on 1 April 2005.
On 5 September 2005 the applicant entered the United Kingdom unaccompanied and following detection he claimed asylum there. On 3 October 2005 the Secretary of State for the Home Department certified the applicant’s asylum claim under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) because Greece was on a list of countries deemed “safe” by paragraph 3(2)(b) of Part 2 of Schedule 3 (“the deeming provision”). Pursuant to Council Regulation (EC) No. 343/2003 (“the Dublin II Regulation”), which provided that the first Member State an asylum seeker entered should be responsible for examining the asylum application, the Home Office asked the Greek authorities to accept responsibility for determining his asylum claim. The Greek authorities agreed to do so and he was notified that he would be removed to Greece on 14 October 2005.
On 12 October 2005 the applicant provided the Secretary of State with advice from the UNHCR which raised concerns about the safety of Greece for asylum seekers returned under the Dublin II Regulation. In particular, he claimed that if sent to Greece there was a real risk he would be returned to Afghanistan to face inhuman or degrading treatment contrary to Article 3 of the Convention. Consequently, he submitted that the Secretary of State’s reliance on the deeming provision was incompatible with Article 3 of the Convention.
The Secretary of State declined to defer the removal directions because the deeming provision created an irrebuttable presumption that Greece was not a place from which the applicant would be sent to another State in breach of his Convention rights.
On 13 October 2005 the applicant applied for judicial review to quash the Secretary of State’s decision or, in the alternative, for a declaration of incompatibility. On the same day, an injunction was granted preventing the applicant from being removed on 14 October.
Before the domestic courts there was no dispute that the Secretary of State’s decision was lawful by virtue of paragraph 3(2)(b); therefore, the only question in issue was whether or not the court should make a declaration of incompatibility.
In a judgment given on 2 July 2007, the High Court Judge observed that:
“the deeming provision precludes the defendant making any inquiry into the safety of removal at the point of removal ... Even if the defendant was faced with clear and compelling evidence of such refoulement in an individual case, he is directed by this provision to deem the third country safe and to ignore the evidence of his own eyes and understanding.”
He therefore held that the fact that the Secretary of State was precluded from considering whether or not there was a risk of unlawful refoulement from Greece was itself a breach of the applicant’s Convention rights.
The Secretary of State had argued that the applicant’s challenge should properly be considered under Article 13 rather than under Article 3. In rejecting that argument, the judge concluded that:
“In this case, however, in my judgment, it is the Act itself that propels the breach of Article 3. Unlawful refoulement is itself a breach of Article 3. Failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive Article and it is that investigation that the deeming provision impedes. It is clear from, among other sources, Assenov v. Bulgaria (1998) 28 EHRR 652 in the European Court of Human Rights that the right to an adequate investigation of an asylum claim is an aspect of the substantive right under Article 3:
‘The Court considers that, in these circumstances, where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the state unlawfully and in breach of Article 3, that provision, read in conjunction with the state’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be an effective official investigation ... If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the state to abuse the rights of those within their control with impunity.’
... ... ...
In the present case, he deeming provision can only work to prevent an investigation of a potential breach of Article 3. It does so in absolute terms. In the words of the defendant’s written argument, it is ‘mandatory’ and ‘the Secretary of State simply has no discretion to consider whether Greece will remove the claimant in breach of his human rights ...’: see paragraph 50. This is not simply a denial of a remedy; it directs the defendant not to comply with the substantive obligation of investigation arising under Article 3.”
The judge therefore declared that paragraph 3(2)(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was incompatible with Article 3 of the Convention.
On 15 April 2008 the UNHCR issued a new Position Paper which for the first time called in express terms for a suspension of removals to Greece under the Dublin II Regulation.
On 14 May 2008 the Court of Appeal allowed the Secretary of State’s appeal against the decision of the High Court. In doing so, it noted that there was no distinct authority for the judge’s assertion that “failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive article”. On the contrary, it held that there was no “freestanding duty to investigate”. While the court accepted that there was a need for “rigorous scrutiny” where an individual claimed that expulsion would expose him to Article 3 ill-treatment, this was “not a distinct, separate or adjectival duty but rather a necessary incident of the substantive obligation to fulfil Article 3”.
Against that background, the court noted that although the Secretary of State could not herself delete states from the list she was entitled, and, in fact, obliged, to monitor the states on the list to ensure individual compliance and, furthermore, the court was entitled, upon receiving an application for a declaration of incompatibility, to investigate by evidence whether any particular state fell foul of Article 3 in a specific case or generally. It therefore concluded that the list system was not in principle incompatible with Article 3.
Moreover, on the evidence before it the court held that as matters stood Greece’s presence on the list did not offend the United Kingdom’s Convention obligations.
Consequently, the court discharged the declaration of incompatibility granted by the High Court Judge. In doing so, however, it expressed the view that “the list system makes the United Kingdom’s compliance with Article 3 of the ECHR fragile” because
“[i]n the absence of individual examinations of the merits of the individual cases by those responsible for specific executive and judicial decisions in those cases, the whole weight of compliance falls on the measures and systems in place for monitoring law and practice in the listed states, and does so in circumstances where government has no discretion to take a state off the list, but must seek main legislation. Those measures and systems will need to be muscular.”
The applicant was granted leave to appeal to the then House of Lords, which dismissed the appeal on 6 May 2009. The leading judgment was given by Lord Hoffmann, with whom the other judges concurred. Lord Hoffmann agreed with the Court of Appeal that there was no “freestanding duty to investigate”. However, he went on to state that no enforceable duty existed in domestic law to monitor third countries and take steps to remove states from the list where necessary. Nevertheless, he did not consider that this rendered the legislation incompatible with Article 3. Lord Hoffman further explained:
“It is true that in Jabari v. Turkey [2001] INLR 136, para 39 the European Court of Human Rights said that when an individual claims that his deportation will infringe his rights under Article 3, ‘a rigorous scrutiny must necessarily be conducted’ of his claim and a similar statement was made (with a reference to the Jabari case) in Kandomabadi v. the Netherlands (application nos 6276/03 and 6122/04) given 29 June 2004. But the impersonal passive construction used by the European Court was in my opinion intended to mean that the European Court will conduct a rigorous scrutiny of the claim and that unless a member state has done so, it runs the risk of being held in breach: see the previous authorities of Chahal v. the United Kingdom (1996) 23 EHRR 413, para 96 and Vilvarajah v. the United Kingdom (1991) 14 EHRR 248, para 108. It did not mean that even though there is actually no real risk of treatment contrary to Article 3 in the receiving state, a member state will be in breach because it did not adequately investigate the matter.”
He continued:
“The structure of the 1998 Act suggests that a declaration of incompatibility should be the last resort in a process of inquiry which begins with the question raised by section 6(1), namely whether a public authority is acting in a way which is incompatible with a Convention right. If the answer is no, that should ordinarily be the end of the case. There will be no need to answer the hypothetical question of whether a statutory provision would have been incompatible with a Convention right if the public authority had been infringing it. On the other hand, if the answer is yes, the next question is whether, as a result of primary legislation, the public authority “could not have acted differently” or was acting “so as to give effect to or enforce” such primary legislation: see section 6(2). If the answer is yes, the public authority will not be acting unlawfully. In answering this question, the court is required by section 3 to interpret the primary legislation, so far as it is possible to do so, in a way which is compatible with Convention rights. If, despite such interpretation, the primary legislation makes the infringement of Convention rights lawful, the court may then make a declaration of incompatibility under section 4(2).”
Lord Hoffmann went on to consider whether or not the Court of Appeal was right in the reason it gave for discharging the declaration of incompatibility, namely that removal to Greece would not infringe the applicant’s Article 3 rights. In doing so, he took note of the recently-decided K.R.S. v the United Kingdom, application no 32733/08, 2 December 2008, which he believed confirmed the validity of the conclusions reached by the Court of Appeal. He concluded that there was no evidence of any risk that the applicant would be returned from Greece to Afghanistan.
The Secretary of State once again took steps to remove the applicant to Greece. After removal directions were set, the applicant claimed that the conditions in Greece would violate his human rights. However, the Secretary of State certified his claim as manifestly ill-founded. The applicant subsequently lodged new judicial review proceedings but later withdrew them without a substantive decision due to funding issues.
Following the reference by the Court of Appeal to the Court of Justice of the European Union in the case of NS v Secretary of State for the Home Department (C4/10/0943), the Secretary of State agreed to re-examine the applicant’s asylum claim pursuant to Article 3(2) of the Dublin II Regulation. She refused the claim by letter dated 23 November 2010.
On 8 February 2011 an Immigration Judge dismissed the applicant’s appeal, finding that there was insufficient evidence to support his claim that he would be at real risk of ill-treatment in Afghanistan. He did not appeal against that decision.
The applicant subsequently instructed new solicitors, who obtained an expert report which appeared to support his claim to be at risk in Afghanistan. That report has been put to the Secretary of State in support of a fresh claim and the Secretary of State is currently considering it.
B. Relevant domestic law
1. The Asylum and Immigration (Treatment of Claimants etc) Act 2004
Schedule 3 of the 2004 Act is headed “Removal of Asylum Seeker to Safe Country” and provides for the removal of asylum seekers to third countries without substantive consideration of their asylum claims.
Part 2 of the Schedule contains the “First List of Safe Countries”, which includes Greece.
Paragraph 3(2)(b) of Part 2 of Schedule 3 (“the deeming provision”) provides as follows:
“(1)This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed—.
(a) from the United Kingdom, and.
(b) to a State of which he is not a national or citizen..
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—.
(a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,.
(b) from which a person will not be sent to another State in contravention of his Convention rights, and.
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.”
Part 3 of the Schedule provides for a “Second List” of states, which are deemed to be safe in respect of the Refugee Convention, but not in respect of refoulement contrary to the Convention, and with regard to which there is a duty to certify a clearly unfounded claim. Likewise, Part 4 provides for a “Third List” of states deemed safe only in respect of the Refugee Convention, with regard to which there is a power to certify a clearly unfounded claim.
Part 6 gives the Secretary of State the power by order to add a state to, or remove a state from, the Second and Third Lists. There is no equivalent power with respect to the First List.
2. The Human Rights Act 1998
Section 6(1) of the Human Rights Act makes it unlawful for public authorities to act in a manner which is incompatible with the Convention. It provides as follows:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right..
(2) Subsection (1) does not apply to an act if— .
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or .
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. .
(3) In this section “public authority” includes— .
(a) a court or tribunal, and .
(b) any person certain of whose functions are functions of a public nature, .
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
... ... ...
(6) An act” includes a failure to act but does not include a failure to— .
(a) introduce in, or lay before, Parliament a proposal for legislation; or .
(b) make any primary legislation or remedial order.”
Pursuant to section 4(2) of the Act, where a court is satisfied that a provision of primary legislation is incompatible with the Convention, it may make a declaration of incompatibility.
C. Relevant European Union law and practice
1. 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 II Regulation”)
This Regulation establishes the principle that only one Member State is responsible for examining an asylum application. The Member State designated as responsible for the asylum application must take charge of the applicant and process the application.
If a Member State to which an asylum application was submitted deems that another Member State is responsible, it can call on that Member State to take charge of the application. A request to take charge or to take back should provide all the information for the Member State requested to determine whether it is actually responsible. Where the requested State accepts to take charge of or to take back the person concerned, a reasoned decision stating that the application is inadmissible in the State in which it was lodged and that there is the obligation to transfer the asylum seeker to the Member State responsible is sent to the applicant.
2. N.S. v. Secretary of State for the Home Department (Case C-411/10) and M.E. and others v. Refugee Applications Commissioner (Case C-493/10)
On 21 December 2011 the Grand Chamber of the Court of Justice of the European Union considered the issue of removals to Greece under the Dublin II Regulation. It ruled that European Union law precluded the application of a conclusive presumption that a Member State responsible for determining an asylum claim under the Dublin II Regulation observed the fundamental rights of the European Union. Therefore, pursuant to the Charter of Fundamental Rights of the European Union, a Member State could not transfer an asylum seeker to a responsible Member State if it could not be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amounted to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.
COMPLAINTS
The applicant complains that the deeming provision was incompatible with Article 3 of the Convention because it limited the domestic authorities to considering whether or not the relevant legislation was incompatible with Article 3 and, as such, prevented them from considering whether or not his expulsion would give rise to a real risk of ill-treatment. The applicant further complains under Article 13 that he has been denied an effective remedy in respect of his complaint under Article 3.
QUESTIONS TO THE PARTIES
1. Did the application of paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in the present case breach the applicant’s rights under Article 3 of the Convention, either read alone or in conjunction with Article 13 of the Convention?
2. In any case, can the applicant claim to be a victim of a violation of Article 3, or did the finding of the Court of Appeal and the House of Lords that removal to Greece would not infringe his Article 3 rights, or any of the subsequent domestic proceedings, remove his status as a victim?
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