Refugee Rights and Non-Refoulement: Proposed Transfer of Asylum Applicant from UK to Greece did not Breach European Convention

Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin) (31 March 2010)

The England and Wales High Court recently held that the proposed transfer of an asylum applicant to Greece was not incompatible with art 3 of the European Convention on Human Rights or similar rights guaranteed under European Union law.

Facts

On 1 April 2009, the UK Secretary of State sought to transfer the claimant from the UK to Greece for determination of his application for asylum, pursuant to the Dublin Regulation (an EU instrument).

Under art 10(1) of the Dublin Regulation, the responsibility lies on a Member State to examine an asylum application where it is established that the applicant first entered that Member State’s border irregularly, having come from a third country.  Accordingly, in this case, Greece was held responsible for processing the claimant’s asylum application.

The claimant argued that transfer under the Dublin Regulation would place him at risk of treatment in violation of art 3 of the European Convention, which prohibits inhuman and degrading treatment.  He also argued that the removal would be contrary to similar fundamental human rights recognised as general principles of European Union law.  These claims were based on the conditions and procedures for asylum applicants in Greece, as well as the possibility of onward refoulement.  The claimant advanced three key arguments in support of his claim, discussed below.

Decision

Argument 1 – incompatibility of the ‘deeming provision’ with the European Convention

The Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (UK) c 19 contains a so-called ‘deeming provision’.  Countries listed in Schedule 3 of the Act are deemed to be ‘safe countries’ as regards Refugee Convention-prohibited persecution, as well as onward refoulement in breach of the European Convention or the Refugee Convention.  The Act restricts the ability of a claimant to appeal to the Asylum and Immigration Tribunal against the decision to remove him or her to a safe country.

The deeming provision does not apply to claims relating to treatment in contravention of the European Convention within the receiving country.  However, para 5(4) of Schedule 3 requires the UK Secretary of State to certify these claims as being clearly unfounded unless satisfied that they are not clearly unfounded.

The claimant’s first argument was that this deeming provision is incompatible with the European Convention.

In the 2009 case of Nasseri, the House of Lords held that the deeming provision (as it related to Greece) was not incompatible with the European Convention on the evidence before the Court.  Hence, the deeming provision’s incompatibility with the European Convention in this matter depended on the provision of fresh evidence indicating that the situation in Greece had deteriorated sufficiently.

Justice Cranston found that the evidence concerning the conditions and procedures for asylum applicants in Greece, as well as the risk of refoulement, was not materially different from the evidence in Nasseri.  Thus, the deeming provision was held not incompatible with art 3 of the European Convention.  It was held that there was no real risk that removal to Greece under the Dublin Regulation would result in the claimant suffering treatment prohibited under art 3.  Citing Lord Hoffman’s acknowledgment in Nasseri that the procedures for asylum applicants in Greece ‘may leave something to be desired’, the principle established by the Strasbourg Court in KRS (affirmed in Nasseri) was that these matters ought to be taken up with the Greek domestic authorities or the European Court of Human Rights if necessary.

Argument 2 – the Secretary of State’s ‘clearly unfounded claim’ certificate ought to be quashed

The second key question for Cranston J was whether the Secretary of State’s Schedule 3 para 5(4) certificate ought to be quashed.  As mentioned above, this provision of the Act required the Secretary of State to certify an applicant’s European Convention claims as clearly unfounded unless satisfied that they were not clearly unfounded.

On the evidence before the Court in this case, it was held that the Secretary of State’s certification was valid.  There was no basis for a conclusion that the European Convention claims were not clearly unfounded.

Argument 3 – the scope of the Secretary of State’s obligations under Art 3(2) of the Dublin Regulation

Finally, Cranston J had to determine the scope of the Secretary of State’s obligations under art 3(2) of the Dublin Regulation.  This section gives a Member State discretion to process an asylum application within its own country, notwithstanding that responsibility for examining the claim lies with another Member State under the Regulation.

His Honour held that, in exercising the art 3(2) discretion, the Secretary of State was bound to consider the rights embodied in art 1 (human dignity), art 18 (guarantee of the right of asylum) and art 19(2) (prohibition on inhuman or degrading treatment) of the EU Charter of Fundamental Rights.  This was because these human rights form part of the general principles of European Union law, and the Secretary of State was applying a European Union law instrument.  As there was found to be only an ad hoc policy regarding the application of art 3(2), there was no evidence that the Secretary of State had considered these fundamental rights.

However, despite this failure, Cranston J did not consider that the claimant’s fundamental rights would be jeopardised by removal to Greece.

It followed from these three findings that the Secretary of State could validly return the applicant to Greece under the Dublin Regulation.

Relevance to the Victorian Charter

This decision may provide some guidance on the operation of s 10(b) of the Victorian Charter, which prohibits cruel, inhuman and degrading treatment.

In this case it was held that a risk the claimant would suffer destitution and homelessness in Greece, including by virtue of Greece’s failure to provide subsistence or the opportunity to seek employment, could not form the basis of a claim against the Secretary of State for breach of art 3 of the European Convention.  The High Court reiterated that the threshold for a contravention of art 3 of the European Convention was high, especially where the claim did not involve the deliberate infliction of pain and suffering.  These principles might inform the interpretation of s 10(b) of the Charter by a Victorian court.

The decision is available at www.bailii.org/ew/cases/EWHC/Admin/2010/705.html.

Jesse Rudd, Law Graduate, Mallesons Stephen Jaques Human Rights Law Group