COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE.
QUEEN'S BENCH DIVISION
MR JUSTICE McCOMBE
Strand. London. WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE CARNWATH
| The Secretary of State for the Home Department
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Mr Andrew Nicol QC and Mr M Henderson (instructed by Sonal Ghelani) for the Refugee Legal Centre (RLC)
Hearing dates : 17 March 2008
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Lord Justice Laws :
"(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 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, and
(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 and in accordance with the Refugee Convention."
The reference to "Convention rights" in paragraph 3(2)(b) is to the rights guaranteed by the ECHR and identified as Convention rights by s.1 of the HRA.
"If the court is satisfied that the provision [sc. of primary legislation] is incompatible with a Convention right, it may make a declaration of that incompatibility."
THE JUDICIAL REVIEW APPLICATION AND THE JUDGMENT BELOW
"[The HRA] obliged [the Secretary of State] to make a proper and lawful decision on C's human rights claim. It would be incompatible with human rights for D to argue that the deeming provision mandated (or entitled) him to shut his eyes to any evidence that may emerge at any time to the effect that the removal of any particular claimant will place the United Kingdom in breach of the ECHR. The result of such a construction would be that Parliament had prohibited D from acting in accordance with Article 3, the most fundamental and absolute of the Convention Rights, by acting upon evidence that the proposed removal would lead to indirect refoulement."
"The argument for the Claimant is that the Defendant's reliance on the deeming provision in the face of that challenge is incompatible with Article 3. In my judgment, the distinction between a challenge to removal and an argument as to compatibility is wholly artificial in the context of the present proceedings, since the incompatibility argument only arises in the context of a question relating to the defendant's desire in the first place to remove the claimant from the country."
"24. The provision in question could not be in clearer terms. It requires 'any person, tribunal or court', that has to determine whether an asylum applicant or applicant for human rights protection may be removed from this country, to treat Greece (among other states) as a place 'from which a person will not be sent to another state in contravention of his Convention rights'. It seems to me that Parliament has precluded both the Secretary of State and this court from considering any such question as to the law and practice on refoulement in any of the listed countries. The exercise which the defendant urges that I should undertake to demonstrate that the claim is academic is, therefore, an impermissible one.
39. … [I]n, my judgment, it is the Act itself that compels 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.
40. In the present case, the 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…'. 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."
"In the present case, the applicant is threatened with removal to Germany, where a deportation order was previously issued to remove him to Sri Lanka. It is accepted by all parties that the applicant is not, as such, threatened with any treatment contrary to Article 3 in Germany. His removal to Germany is however one link in a possible chain of events which might result in his return to Sri Lanka where it is alleged that he would face the real risk of such treatment.
The Court finds that the indirect removal in this case to an intermediary country, which is also a Contracting State, does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of its decision to expel, exposed to treatment contrary to Article 3 of the Convention. Nor can the United Kingdom rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States establish international agreements, to pursue co-operation in certain fields of activities, there may be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (see e.g. Waite and Kennedy v Germany judgment of 18 February 1999, Reports 1999, § 67). The Court notes the comments of the UNHCR that, while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered."
As the Strasbourg court noted, this position is well recognised in English authority: see for example R (Thangarasa) and (Yogathas) v Secretary of State for the Home Department  AC 920.
"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 virtual impunity."
THE ISSUES CONFRONTED
The Appellant's Principal Submission
"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…"
"This 'monitoring' facility is in reality illusory in the light of paragraph 20 as enacted. It amounts to no more than a facility to monitor for the purposes of deciding whether to promote primary legislation to remove any particular state from the list."
This point goes not so much to the construction of paragraph 3(1) as to the question whether, even if Mr Jay's construction is right, the statutory list nevertheless falls foul of Article 3 on the footing that the Secretary of State's capacity to oversee the list and thus ascertain the risk of violations in the case of any of the listed States is in truth nugatory.
Greece: the Evidence
"On the basis of the latest information about the possible violations of the rights of asylum seekers in Greece, and on the basis of the need for more information about the conditions of asylum seekers in this country, the Immigration Appeal Board has halted until further notice the transfers to Greece according to the Dublin II Regulation."
I should also cite at this point a "Public Statement" from Amnesty International dated 27 February 2008, in which the decision of the Norwegian Board to suspend Dublin II removals to Greece is noted. It stated:
"Asylum-seekers [sc. in Greece] are often interviewed about their claim in the absence of an interpreter and lawyer. Lawyers report that in practice, individuals can expect to have their claim rejected at first instance. Amnesty International has repeatedly called on the Greek authorities to take concrete measures to improve the conditions for asylum-seekers including by resolving the legal limbo in which they are left – without documents and without access to any social services in practice... Greece does not return people to Afghanistan and yet does not process their asylum application in a prompt, fair way, leaving them in limbo without legal status and therefore without rights."
"The law provides for the granting of asylum or refugee status in accordance with the 1951 UN Convention relating to the Status of Refugees and its 1967 protocol. However, the government largely has not implemented a 1999 presidential decree that brought the law into compliance with the standards of the UNHCR with regard to asylum procedures. In practice the government provided some protection against refoulement, the return of persons to a country where there was reason to believe they feared persecution."
The 2007 Report replicated this passage, but with the substitution of the phrase "very limited protection" for "some protection".
"... I have contacted the Dublin office at the [Norwegian Directorate of Immigration], and have been advised that the material before the Immigration Appeal Board consisted of the reports from Amnesty International, UNHCR and other organisations which have already been placed before the Secretary of State in the case of Nasseri and others. These reports have already been considered very carefully and it has been concluded that, despite the concerns over certain procedures in the Greek asylum process which they describe, there is absolutely no evidence to suggest that any asylum seeker returned to Greece under the Dublin Regulation would experience the severe and continual ill-treatment needed to show a breach of Article 3 ECHR...
This office has also been informed by the Head of the Greek Dublin Unit that Greece does not at present refoule asylum applicants to such countries as Afghanistan, Iraq, Iran, Somalia or Sudan, even if their asylum claims have been rejected. They may receive a letter instructing them to leave Greece but no action is taken to enforce their departure."
"17. In light of the above, UNHCR remains concerned that as a result of structural shortcomings in the Greek asylum procedure, asylum-seekers continue to remain effectively in limbo, unable to exercise their rights, for prolonged periods of time. UNHCR further notes that the procedure does not guarantee a fair evaluation of asylum claims at first and second instances. Finally, essential procedural safeguards are not guaranteed throughout the refugee status determination process to the detriment of asylum-seekers who often lack the most basic entitlements, such as interpreters and legal aid to ensure that their claims receive adequate scrutiny from the asylum authorities. UNHCR calls upon the Government of Greece to promptly review its asylum procedure at first and second instances and in so doing take in due consideration UNHCR's advice."
"24. … [A]sylum-seekers, including 'Dublin returnees', continue to face undue hardships in having their claims heard and adequately adjudicated. UNHCR is concerned that all these factors taken together may give rise to a risk of refoulement."
Lord Justice Carnwath:
The Master of the Rolls: