Judgment Title: J.M.O. -v- The Refugee Applications Commissioner & Ors
Neutral Citation:  IEHC 467
High Court Record Number: 2008 1033 JR
Date of Delivery: 22/08/2014
Court: High Court
Composition of Court:
Judgment by: McDermott J.
Status of Judgment: Approved
Neutral Citation:  IEHC 467
THE HIGH COURT
[2008 No. 1033 J.R.]
THE REFUGEE APPLICATIONS COMMISSIONER AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
JUDGMENT of Mr. Justice McDermott delivered on the 22nd day of August, 2014
1. The applicant seeks judicial review by way of certiorari of a decision of the first named respondent (“the Commissioner”) made under Council Regulation (EC) No. 343/2003 (“the Dublin II Regulation”) which establishes the criteria and mechanisms for determining which Member State of the European Union is responsible for examining an asylum application lodged in one of the Member States by a third country national.
2. The general principles designating the appropriate state for consideration of an application are set out in Chapter II of the Regulation. Article 3 provides:-
2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation…”
6. He applied for asylum in Ireland on 3rd August, 2007. In his application he claimed to have been unlawfully arrested on 10th December, 2006, at 6.00am in Ingushetia and beaten whilst detained. Attempts were made to compel him to confess to an attack on law enforcement officials. He was released at 5.00pm and forms were completed stating that he had not been involved in the offences under investigation. He subsequently learned from his mother that she had paid a sum of $1,500 to a senior police official to procure his release. He stated that he knew of other neighbours and acquaintances who had disappeared following arrest in similar circumstances. He fled Ingushetia because he feared for his life. He stated that he was also falsely accused of the murder of a teacher and her two children and the murder of a senior police officer and the attempted murder of another. He travelled to Moscow.
7. In his Irish application he stated falsely that he left Chechnya on 10th December, 2006, for Ukraine where he remained until May, 2007 and then travelled to Ireland, arriving at Dublin Airport on 12th May. Following his application for asylum on 3rd August, his fingerprints were taken and submitted to Eurodac.
8. Information provided by Eurodac revealed that the applicant made an application for asylum in Slovakia on 10th January, 2007, many months before his claimed arrival date in Ireland. His application had not been determined at the time of the Irish application because he left Slovakia before that could occur.
9. The applicant, when faced with this knowledge, changed his story and stated that he had fled Ingushetia because he feared for his life in the circumstances outlined above. He went to Moscow where he remained between 10th December, 2006 and 2nd January, 2007. He entered Ukraine on 2nd November, 2007, and travelled to Slovakia on 9th January, 2008 where he made the application for asylum. He did not claim asylum in Ukraine as he said that he was beaten by Ukrainian border guards in the presence of Slovak border guards. He explained that he delayed making an application for asylum in Ireland until May because of his fear of being returned to Slovakia and thence to Russia. He said he failed to mention his Slovakian application because he thought he could explain it at a later stage.
10. As a result of the information received, a recommendation was made on 13th August, 2007, that a request be made to the Slovak authorities to take the applicant back in accordance with Article 16 of the Dublin II Regulation and S.I. 423/2003.
11. On 22nd August, 2007, a submission was made on behalf of the applicant in which he acknowledged the previous Slovak application. He made a number of complaints about his experience as a Slovak asylum seeker. In particular, his solicitor claimed:-
13. An application was made to the Slovak authorities to take the applicant back under the Dublin II Regulation on 10th September, 2007. The Slovak Ministry of the Interior accepted the request by letter dated 24th September. A transfer order was made on 9th October.
14. By letter dated 17th October, further submissions were made to the respondent that there were “grave and exceptional circumstances” why the applicant should not be transferred to Slovakia. It was stated that the applicant was suffering from a range of emotional and physical medical difficulties as evidenced by a medical report submitted which concluded that he had “experienced suicidal ideation”. He was also said to be “moderately depressed and anxious”. Medication had been prescribed. He had been advised to attend psychological services “for the foreseeable future”. It was claimed that he also suffered symptoms of chest pain for which he attended at a hospital emergency department: the medical report submitted indicated that the diagnosis was “non-cardiac chest pain”. It was claimed that he was unfit to travel and that any attempt to remove him constituted a serious threat to his health, safety and wellbeing. The alleged defects of the Slovakian asylum system were repeated and further documentation to support the applicant’s case in that regard was submitted.
15. The transfer order was the subject of judicial review proceedings on the grounds, inter alia, that the Slovakian authorities did not grant asylum to persons in the position of the applicant, that he would be subject to unlawful discrimination in Slovakia, that there was a real risk to his physical and mental health if returned to Slovakia and that the respondent wrongly determined that the Slovak authorities would fully apply the provisions of the 1951 Geneva Convention and observe the principles of non-refoulement. It was also claimed that the respondent failed to consider and have due regard to country of origin information in respect of the treatment of Russian asylum seekers in Slovakia. Leave to apply for judicial review was granted on 28th April, 2008, and an interlocutory injunction restraining the removal of the applicant to Slovakia (Record No. 2007/1400 J.R.) was also granted. . These proceedings were settled on 1st July, 2008. In accordance with the terms of settlement, the applicant made a second application to the Commissioner that his application for asylum be considered in Ireland. Further submissions were made as to why he should not be returned to Slovakia. These relied upon the previous submissions made and materials furnished prior to the judicial review proceedings. In addition, the applicant furnished an updated psychological assessment dated 10th July, 2008. This confirmed the recommendation that the applicant attend the Psychological Service for Refugee and Asylum Seekers for the foreseeable future and the fragile nature of his mental state.
17. A consideration of the file by Mr. Richard Godfrey was carried out dated 29th August, 2008, under a number of headings:-
(2) Submissions by the Refugee Legal Services concerning;
(a) Article 8 rights;
(b) The mental health of the applicant;
(c) The application for refugee status in Slovakia; and
19. The potential affect of a return to Slovakia on the applicant’s rights under Article 8 of the European Convention on Human Rights with particular regard to family rights was considered. The applicant had a nephew who had a right to reside in Ireland and a transfer to Slovakia would result in a break up of the family unit of which he is a part. The definition of “family member” under Article 2 of the Dublin Regulation does not include an uncle or nephew. The nephew’s identity was not revealed.
20. The assessment notes that any issue in relation to the applicant’s medical difficulties may be dealt with in Slovakia in deciding whether or not he should be repatriated to his home country, should that issue arise. Medical difficulties were not the only criteria to be considered under the Dublin II Regulation and it was considered that any relevant medical reports concerning the applicant could be forwarded by the Irish authorities to the health authorities in Slovakia.
21. A submission was made by the Refugee Legal Services that because the applicant’s personal details which formed the basis of his claim remained unchanged, his honesty and consistency must be accepted and, therefore, he deserved to have his claim fairly and fully examined in Ireland. The assessment makes a number of observations in respect of clear untruths which occurred in the applicant’s original application which are accepted by him in his affidavit.
22. The assessment also analyses the figures advanced in terms of the suggested low rate of success by Chechens in seeking asylum in Slovakia. It states:-
24. It was also noted that a US State Department Report of 6th March, 2007, submitted by the applicant stated that in respect of human rights practices in Slovakia in 2006, “the law provides for the granting of asylum or refugee status in accordance with the UN 1951 Convention…and the government had an established system for providing some protection to refugees. In practice the government provided protection against refoulement, the return of persons to a country where they feared persecution. However, the government did not routinely grant refugee status”. It was concluded that Ireland could be satisfied from UNHCR statistics and various reports that Ireland would not be a party to refoulement in returning the applicant to Slovakia.
25. In addition, it was noted that the operation of the Dublin II Regulation was under constant monitoring by the European Commission in Brussels. It was open to any Member State to raise any question of interpretation or practice with the Commission.
Grounds (ii), (iii), (iv), (v) and (vi)
30. Grounds (iii) and (iv) are more focused and particularised. Ground (iii) contends that both respondents failed to take account of relevant matters or took into account irrelevant matters in making the transfer order, or in failing to revoke it in breach of fair procedures and natural and constitutional justice. It is claimed, in particular, that the Commissioner failed to consider that:-
(b) There is a real risk to the applicant’s life and/or health if he is transferred to Slovakia;
(c) The Slovak authorities do not properly apply the provisions of the 1951 Geneva Convention on Refugees to applicant(s) identified as being from Russia;
(d) That the applicant is ill and dependent on a relative and that Article 15(2) of the Regulation is thereby applicable;
(e) That the most recent figures demonstrated a continuing pattern of discrimination against the persons in the position of the applicant in the Slovak Republic in asylum applications; and
(f) The Slovak authorities did not apply the provisions of the Geneva Convention on Refugees and maintain the principles of non-refoulement.”
32. Ground (vi) is a generalised plea that the transfer would be a disproportionate interference with the applicant’s rights (unspecified) under the provisions of the Constitution, European Union law and the European Convention on Human Rights, and a generalised claim that he would be the victim of unlawful discrimination. Extensive submissions were received from both parties in respect of each of these grounds.
33. The court notes the considerable emphasis placed in the submissions on an alleged failure to attach appropriate weight to items of evidence. This Court is not a court of appeal. It is only if the decision makers acted irrationally or unreasonably or disproportionately in the context of the well established principles in that regard as set out in Meadows v. Minister for Justice, Equality and Law Reform  2 IR 701, that this Court may interfere by way of judicial review.
Transfer and Article 3 of the European Convention
35. Under Article 3(2), the “Sovereignty Clause”, a Member State may accept an application for asylum for examination even though another Member State is responsible. In particular, the Regulation expressly provides for a derogation in situations where family members require to be reunited or for humanitarian reasons. The Dublin II Regulation is part of a regulatory system being developed through a “Common European Asylum System”. It is part of a matrix of secondary legislative provisions dealing with the fairness and effectiveness of asylum procedures for the implementation of the Geneva Convention and other forms of international protection. This includes the Procedures Directive (2005/85/EC), the Qualification Directive (2004/83/EC) and the Reception Conditions Directive (2003/9/EC). In Mantay (Girmay) v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform (Unreported, High Court, Clarke J., 8th May, 2009), this Court accepted that the object and purpose of the Dublin II Regulation was to provide common principles designed to secure the rapid processing of asylum applications, and ensure the return of any asylum seeker who has already sought asylum in another Member State. The primary task of the Commissioner is to determine which country has responsibility for dealing with the asylum application. In this case, it is agreed that, in normal circumstances, the appropriate country is Slovakia, in accordance with the purpose of the scheme established under the Dublin II Regulation.
36. It was submitted that the Commissioner was entitled to direct the transfer of individuals only if the operation in another Member State of the Geneva Convention was consistent with the terms of the Dublin II Regulation. The Commissioner was not permitted to transfer the applicant when the relevant evidence established that there were substantial grounds for believing that the processes for the determination of asylum applications were fundamentally unfair and ineffective. It was submitted that if it is alleged that such grounds exist, that matter must be properly investigated. In that regard, it was claimed that the Commissioner erred in law in ruling that it was not part of his function to reach a conclusion on such evidence as might be available to him concerning the adequacy or otherwise of the asylum assessment process in Slovakia. However, it is clear that in the assessment of 29th August, 2008, the Commissioner addressed the complaint made by the applicant concerning the low success rate of applicants for asylum from Russia in Slovakia. The Commissioner did not refuse to consider the evidence produced on this matter and, in fact, analysed the figures from the UNHCR Global Trends for 2007, as quoted already in the judgment, and concluded that they could not be relied upon for the proposition advanced. The Commissioner was satisfied that local remedies were available before the Slovakian Courts and the European Court of Human Rights in respect of any violations of the Convention or breaches of European Union law.
37. It is clearly correct that the Commissioner has no function in instructing or monitoring the application by Slovakia of various Conventions to which Slovakia is a party. That is not to suggest that further evidence, if available, could not have been produced to the Commissioner relevant to a threat to the rights of the applicant under Article 3 of the European Convention on Human Rights, as provided under the case law of the European Court of Human Rights and the European Court of Justice, to which I will return. The Commissioner observes, quite properly, that information available (which did not emanate from the applicant) from Ireland’s involvement at European level in respect of the monitoring and assessment of the application of the various Directives applicable to asylum seekers, suggested that no such issues had been raised as were now canvassed with him. Therefore, it is clear that the Commissioner investigated and ascertained that no question regarding Slovak practices or procedures had been circulated by the European Commission to other Member States. It was noted that the Dublin Regulation Contact Committee (DRCC) held meetings in Brussels every six months attended by representatives from each of the states, which were also attended by representatives of the UNHCR office in Brussels, who have the opportunity to comment on any issues discussed or to raise concerns of their own. I am satisfied that the Commissioner reviewed the relevant evidence produced in respect of the supposed inadequacies of the Slovak system and also informed himself and was careful to ensure that no complaints and/or reports had been furnished from other Member States to the Commission, or from the UNHCR to the various interested parties. It was clear that there was little or no evidence to support the proposition that the Slovak authorities had failed fundamentally to apply European law in respect of asylum applications or discriminated against Chechens and/or Russians making such applications. The evidence available, in my view, fell well short of that which might give rise to the exercise of a derogation under Article 3(2) within the parameters of the then existing or later jurisprudence.
38. The same care was taken by the Commissioner in his consideration of the issue of non-refoulement. The Commissioner was satisfied, having consulted the same sources, that no instance of unlawful refoulement had been reported from Slovakia. There is no evidence to suggest that the Slovak Republic would not abide by the obligations of the Geneva Convention as applied under European Union law, or in respect of any of its other international obligations. In that regard, the Commissioner noted Ireland’s obligation to ensure the protection of fundamental rights and, in particular, that it had a clear responsibility in respect of chain refoulement to consider whether an applicant returned to Slovakia would be refouled. The only information supplied in that regard concerned the encounter which the applicant was said to have had with two Chechens who were returned to Russia, the limitations of which have already been considered (see para. 23 ante).
39. This evidence was considered within the principles established in recent years on the obligations of Member States of the European Union to protect asylum applicants from exposure to breaches of Article 3 of the European Convention on Human Rights and Fundamental Freedoms. Article 3 is absolute in the terms of the obligation imposed on the parties to the Convention, including the Member States of the European Union.
M.S.S. v. Belgium and Greece
(b) The conditions of detention of asylum seekers were inhuman and degrading; and
(c) The inefficiencies in the asylum procedure in Greece and the consequent result of expulsion without an appropriate examination of the merits of the asylum application or access to an effective remedy breached the applicant’s rights under Articles 3 and 13 of the Convention.
359. The Government argued that the applicant did not sufficiently individualise, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The court considers, however, that it was in fact up to the Belgian authorities faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable.”
42. In addition, the court noted the extremely low rate of asylum or subsidiary protection granted by the Greek authorities compared with other European Union Member States, the occurrence of forced returns by Greece to high risk countries detailed in a number of reports consulted by the court and the risk of refoulement which the applicant faced in practice before any decision was taken of the merits. A number of physical attempts had been made to deport the applicant prior to the examination of his claim. It was clear that the applicant in the case faced very real risk to his Article 3 rights if returned to Greece.
43. The principles applied in M.S.S were previously applied in T.I. v. United Kingdom (438844/08 Reports 2000-III) and reaffirmed in K.R.S v. United Kingdom (Application 32733/08).
44. In T.I. a Sri Lankan national had been refused asylum in Germany. A deportation order was made against him. He travelled to the United Kingdom where he made a further application for asylum based on a fear of persecution by state and non-state agents. An order was made for his expulsion to Germany. The applicant claimed that the United Kingdom Government had an obligation under Article 3 to ensure he was not returned to Sri Lanka which was, he claimed, an inevitable consequence of his proposed expulsion to Germany. The court held that the indirect removal to an intermediary country, also a contracting state under the Convention, did not affect the responsibility of the United Kingdom to ensure that the applicant was not, as result of its decision to expel, exposed to treatment contrary to Article 3. The evidence presented to the court included medical evidence supporting his allegations of torture and reports by Amnesty International, the United Nations Special Rapporteur and the United States State Department, which gave rise to concerns as to the risks he faced if returned to Sri Lanka. The German Government at the time, excluded non-state agents from its consideration of asylum claims. The primary issue was whether there were effective procedural safeguards to protect the applicant against removal from Germany to Sri Lanka. The evidence established that on his return to Germany the applicant could make a fresh claim for asylum as well as claims for protection under the Aliens Act. The court was satisfied by the German Government’s assurances that the applicant would not face a risk of immediate or summary removal to Sri Lanka since removal could not take place without a fresh deportation order, which would be subject to review by the administrative court. It was accepted by the court that there was considerable doubt that a fresh asylum claim would be granted or that a claim under the Aliens Act would be successful. However, there was statutory protection in Germany available to persons facing risk from non-state agents. Though framed in discretionary terms, the court was satisfied on the basis of assurances given by the German Government on its domestic law and practice that the applicant’s claims, if accepted by the authorities, could fall within the scope of the discretion and attract statutory protection. The authorities might still reject the applicant’s claim after re-examination, but this was a matter of speculation and conjecture. The evidence of the risk was not “sufficiently concrete or determinate” (p. 458). Therefore, the United Kingdom had not failed in its obligation under Article 3 in directing the applicant’s removal to Germany, nor had it been shown that the decision was taken without appropriate regard to the existence of adequate safeguards in Germany to avoid the risk of any inhuman or degrading treatment.
45. The assessment made by the Commissioner in this case makes specific reference to the T.I. decision and the state’s responsibilities under Article 3 to ensure that its functions in transferring an applicant to an intermediary state such as Slovakia do not encroach on the applicant’s Article 3 rights. It is clear from the terms of the decision that the principles of T.I. informed the assessment made by the respondents of the alleged risk faced by the applicant to his Article 3 rights if returned to Russia by the Slovakian authorities, and the adequacy of the examination of his claim for asylum or the threat of simple chain refoulement.
46. The court notes that the amended grounds dated 19th November, 2008, and the submissions now made to the court are based to a significant extent on an interpretation of subsequent case law of the European Court of Human Rights and the European Court of Justice.
47. The principles in T.I. were applied by the court in K.R.S. v. United Kingdom, with particular reference to the Dublin II Regulation. The decision was delivered in December, 2008. The applicant, an Iranian national, travelled through Greece to the United Kingdom where he claimed asylum. The United Kingdom authorities proposed to return the applicant to Greece, which was the appropriate country to consider the asylum application and through which the applicant had entered the European Union for the first time. A UNHCR report dated May, 2008 advised governments to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice and to exercise their powers under Article 3(2) of the Regulation to determine the claim for asylum. The applicant was granted interim relief under r. 39 of the Court Rules restraining his transfer to Greece: this was followed by similar relief in approximately 80 other cases.
48. A significant body of evidence was adduced concerning the shortcomings of the procedure available to asylum seekers in Greece and their living and detention conditions, notwithstanding the extensive protections applicable under European Union law to asylum applicants which Greece was obliged to respect and apply. Norway had stopped the return of asylum seekers to Greece under the Regulation. Reports from the UNHCR, Amnesty International, and a joint report of the Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and the Greek Helsinki Committee was highly critical of the deficiencies of the Greek system. It stated:-
49. The court reaffirmed the general principles applicable under Articles 3 and 13 of the Convention, namely that where substantial grounds had been shown for believing that the person concerned faces a real risk of being subject to treatment contrary to Article 3, the state had an obligation not to expel him/her. There must be a meaningful assessment of that claim. An effective remedy under Article 13 requires “independent and rigorous scrutiny of a claim” that substantial grounds exist. The court was satisfied that the principles set out in T.I. applied “with equal force” to the Dublin II Regulation.
50. The court was not satisfied that the evidence adduced and the circumstances described in the reports submitted could be relied upon to prevent the United Kingdom from removing the applicant to Greece. It held that the evidence did not establish that Greece removed people to Iran or that the applicant would be expelled as a matter of course to Iran. It applied a presumption in favour of Greece that it would abide by its obligations under the European Union Directives 2005/85/EC and 2003/9/EC and noted that new legislative provisions had been introduced in Greece for that purpose. Furthermore, the court noted that the United Kingdom authorities could reconsider the issue if the Greek Government resumed expulsions to Iran. It also held, in addition, that there was nothing before the court to suggest that even if, on his return to Greece the applicant was the subject of a final negative decision, he would have been prevented from applying for interim relief to prevent his removal. The applicant was vested with a right to apply to the European Court of Human Rights for interim relief and to apply domestically in Greece in respect of any complaints concerning breaches of Article 3 arising from his conditions of confinement with further recourse to the European Court.
51. It K.R.S., the applicant failed to establish “substantial grounds” for believing that the applicant faced a “real risk” of being subject to a breach of Article 3 rights, if returned. While this decision postdates the decision in this case, I am satisfied that the evidence adduced by the applicant was far less cogent and detailed than that which failed to establish a breach of Article 3 rights in K.R.S. I am also satisfied that the principles applied in the assessment by the Commissioner complied with those set out in T.I. and K.R.S., and ultimately applied in M.S.S.
52. The applicant in M.S.S. succeeded in establishing the existence of substantial grounds that the applicant would be exposed to a real risk of a breach of Article 3 and Article 13 if returned to Greece in a decision delivered in December, 2010 by which time an extensive, if not an overwhelming, body of evidence had been adduced by the applicant.
53. Following a decision by the Belgian courts that the applicant should be transferred to Greece in accordance with the Dublin II Regulation, an interim application was made under r. 39 to prevent the applicant’s return. This was refused on the basis that the Greek authorities would abide by the provisions of Articles 3 and 13 and the Dublin Regulation, together with the various instruments of European law by which Greece was bound. The court later considered a wide body of evidence which included evidence of the applicant’s experience on his return to Greece, the failure of the Greek authorities to provide him with access to an adequate asylum claims procedure, poor living and detention conditions, a large number of detailed reports by international organisations and non-governmental organisations on the systemic failure of the Greek asylum system and numerous accounts from other asylum seekers and witnesses which corroborated the applicant’s evidence concerning such matters as the ill treatment of detained asylum seekers. The court was satisfied that the abject living conditions suffered by the applicant and other asylum seekers reached the level of severity required to establish a breach of Article 3.
54. The court also concluded that there had been a violation of Articles 3 and 13 because of the deficiencies in the examination by the Greek authorities of the applicant’s asylum request, the risk he faced of being returned directly or indirectly to his country of origin without any serious examination of the merits of his asylum application, and without having access to an effective remedy. In that regard, the court stated:-
301. The court notes, firstly, the shortcomings in access to the asylum procedure and in the examination of applications for asylum…; insufficient information for asylum seekers about the procedures to be followed, difficult access to the Attica Police Headquarters, no reliable system of communication between the authorities and the asylum seekers, shortage of interpreters and lack of training of the staff responsible for conducing the individual interviews, lack of legal aid effectively depriving the asylum seekers of legal counsel, and excessive lengthy delays in receiving a decision. These shortcomings affect asylum seekers arriving in Greece for the first time as well as those sent back there in application of the Dublin Regulation.
302. The court is also concerned about the findings of the different surveys carried out by the UNHCR, which show that almost all first instance decisions are negative and drafted in a stereotyped manner without any details of the reasons for the decisions being given…in addition, the watchdog role played by the Refugee Advisory Committees at second instance has been removed and the UNHCR no longer plays a part in the asylum procedure…
313. The court concludes that to date the Greek authorities have not taken any steps to communicate with the applicant or reached any decision in his case offering him no real and adequate opportunity to defend his application for asylum. What is more, the court takes note of the extremely low rate of asylum or subsidiary protection granted by the Greek authorities compared with other European Union Member States…The importance to be attached to statistics varies, of course, according to the circumstances, but in the court’s view they tend here to strengthen the applicant’s argument concerning his loss of faith in the asylum procedure.
314. …It cannot ignore the fact that the forced returns by Greece to high risk countries have regularly been denounced by the third party interveners and several of the reports consulted by the court…
315. Of at least equal concern to the court are the risks of refoulement the applicant faces in practice before any decision is taken on the merits of his case.”
359. …The court considers,…that it was in fact up to the Belgian authorities faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3…”
58. Prior to the decision in M.S.S., in Mirza v. Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform (Unreported, High Court, 21st October, 2009), Clark J. considered the effect of the decisions of T.I. and K.R.S. and the extent of the state’s obligation to derogate from the general principles of the Dublin II Regulation once cogent evidence is adduced that another Member State does not comply with its obligations under European Union asylum law. The court was satisfied that the decision in K.R.S. established that where substantial grounds had been shown for believing that the proposed transferee would, if transferred, face a real risk of being subjected to treatment contrary to Article 3, that person should not be transferred: in such circumstances Article 3 imposed an absolute prohibition on refoulement. The court noted that each Member State was responsible for its own asylum processes and if Ireland has issues with another Member State’s asylum process, that was a matter for complaint to the Commission. Enforcement procedures are primarily a matter for the Commission (para. 86) as happened in Commission v. Greece (Case C-130/08) (judgment, 24th May, 2008), in which the European Court of Justice held that Greece had failed to adopt the necessary measures to ensure that its examination of the merits of applications for asylum seekers in respect of those whom a discontinuance decision had been issued on the grounds of arbitrary departure from the state, were in accordance with the Dublin II Regulation. Clark J. concluded that in the absence of substantial grounds for believing that there is a real and substantial risk of the transferee being subjected to treatment contrary to Article 3, there was no obligation to derogate under Article 3(2) of the Dublin II Regulation. The learned judge adopted the distinction drawn by Stanley Burton L.J. in Zego (Eritrea) & Kadir (Iraq) v. Secretary of State for the Home Department  EWCA Civ 985 (6th August, 2008) stating that:-
60. I am satisfied that, at the time the assessment was made in 2007, the facts of the case were fully considered by the Commissioner and the second respondent within the principles of T.I. as later applied in K.R.S. and Mirza.
The Obligation under Article 3(2)
Article 3(2), N.S. and M.E., and the Charter of Fundamental Rights
63. The court was satisfied that the provisions of European Union law precluded the application of a conclusive presumption that the Member State to which an applicant may be returned under Article 3(1) observes the fundamental rights of the European Union. The court acknowledged the context in which the laws governing the Common European Asylum System were formulated which allowed the assumption that all participating states observed fundamental rights, including rights based on the Geneva Convention and the 1967 Protocol, and on the European Convention on Human Rights and that the Member States could have confidence in each other in that respect. It was to be assumed that the treatment of asylum seekers in all Member States complied with the requirements of the Charter, the Geneva Convention and the European Convention on Human Rights, but that presumption was rebuttable. The court was not satisfied that any infringement of the various Directives precluded the transfer of an applicant. It stated:-
85. If the mandatory consequences of any infringement of the individual provisions of Directives 2003/9, 2004/83 or 2005/85 by the Member States responsible were that the Member State in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned state, that would add to the criteria for determining the Member State responsible set out in Chapter 3 of Regulation No. 343/2003 another exclusionary criterion according to which minor infringements of the above mentioned Directives committed in a certain Member State may exempt that Member State from the obligations provided for under Regulation No. 343/2003. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the Member State responsible for examining an asylum claim lodged in the European Union.
86. By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.”
65. The court in N.S. and M.E. noted that the extent of the infringement of fundamental rights described in the M.S.S. case demonstrated that there existed in Greece at the time of the transfer of the applicant in that case a systemic deficiency in the asylum procedure and the reception conditions of asylum seekers. It noted the extensive evidence taken into account in reaching that decision. It accepted that the relevance of such reports must be known to a Member State which has to carry out the transfer given its participation in the work of the Council of the European Union which is one of the addressees of such reports. The court was, therefore, satisfied that:-
67. In considering the effect of the N.S. and M.E. judgment in England and Wales, Parker J. in Medhanye v. Secretary of State for the Home Department (No.2)  EWHC 1799 (Admin) considered the particular reference made to Articles 1, 18 and 47 of the Charter of Fundamental Rights in that judgment and stated:-
Grounds 5(iii)(d) and 5(iv)
(2) In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new born child, serious illness, severe handicap or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.”
(i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;
(ii) the minor children of couples referred to in point (i) or of the applicant…
(iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried.”
72. The Commissioner considered the application of the European Convention on Human Rights and was satisfied that the provisions of Article 15 of the Dublin II Regulation were not at variance with the provisions of Article 8 which save for limited circumstances (which do not apply in this case on the evidence) does not generally accept the relationship of uncle and nephew as giving rise to its protection. I am satisfied that the Commissioner’s consideration of the application of Article 8 was correct in the absence of evidence of dependency and the existence of family ties in the country of origin.
73. The court is also satisfied that the respondents under Article 15, considered appropriately the evidence concerning the mental state of the applicant at the time of and following his arrival in Ireland including the reports submitted, and that the conclusion reached in that regard was not unreasonable or irrational.
76. The court is also satisfied that the applicant’s challenge to the decision based on Article 15 of the Dublin II Regulation and Article 8 of the European Convention on Human Rights must be rejected.