CO/11319/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Tuesday, 5th February 2008
 
B e f o r e: 

MR JUSTICE UNDERHILL
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Between: 
THE QUEEN ON THE APPLICATION OF ZEGO 
Claimant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr G Lee (instructed by Duncan Lewis & Co) appeared on behalf of the Claimant 
Mr A Payne (instructed by the Treasury Solicitor) appeared on behalf of the Defendant 
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J U D G M E N T 

1.	MR JUSTICE UNDERHILL:  The claimant is an Eritrean national.  He entered the United Kingdom illegally using a forged British passport on 23rd October 2007 and claimed asylum.  His fingerprints were taken and matched to a person who had previously entered Greece illegally and had been fingerprinted as an illegal entrant there on 14th August 2007.  On that basis the Home Office asked the Greek authorities to accept responsibility for his asylum application under the Dublin Regulation ((EC) 343/2003).  Initially they refused, but on 22nd November 2007 the Head of the Aliens Division in the Ministry of Interior in Greece wrote to the Dublin Unit at the Home Office in the following terms: 
"Subject: Reconsideration request according to Article 5.2 of the Commission Regulation (EC) No 15603/2003 of 02‑09‑2003 regarding the third country national named below  . . . [and the claimant's details are then given] 
Dear colleagues, 
Our Service hereby informs you that your request for reconsideration has been granted according to Article 10.1 of the Dublin Regulation (without prejudice to the 'cessation provisions').  More specifically, the above mentioned alien is registered by our Authorities in the Eurodac Database as Category 2 ('Alien who is apprehended by the competent control authorities in connection with the irregular crossing of land, sea or air of the border of that member state having come from a third country and who is not turned back.').  
Regarding the transfer to Athens International Airport, we kindly require to be precisely informed 5 working days in advance.  Hence, please send us a copy of the transfer details and the laissez‑passer to the fax number [which is then given].  Furthermore, simultaneously to the transfer, please send us by air carrier the passport and/or any other document the applicant might possess.  Please note that this person will be able to submit an asylum application upon the arrival to our country, if he/she wishes to do so."
2.	Having received that response, on 27th November 2007 the defendant wrote to the claimant refusing his application for asylum.  The letter was a standard "third country grounds" letter.  The material part reads as follows: 
"Asylum and Immigration (Treatment of Claimants et cetera) Act 2004.  
Certification of Asylum Application on Third Country Grounds. 
You have applied for asylum in the United Kingdom on the grounds that you have a well‑founded fear of persecution in Eritrea for reasons of race, religion, nationality, membership of a particular social group or political opinion.   
However, Eritrea is not the only country to which you can be removed.  Under the provisions of the Council Regulation (EC) No 343/2003 of 18th February 2003 the authorities in Greece have accepted that Greece is the state responsible for examining your application for asylum.  By virtue of Schedule 3, Part 2, paragraph 3(2) of the Asylum and Immigration (Treatment of Claimants et cetera) Act 2004 Greece shall be treated as a place ‑‑  
 (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 
(b) a place from which you will not be sent to another State in contravention of your Convention rights; and 
(c) from where you will not be sent to another State otherwise than in accordance with the Refugee Convention.  
You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to Greece.  
The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the applicant can be sent.  There are no grounds for departing from this practice in your case . . . " 
I will refer in this judgment to the statutory provisions relied on by the defendant (that is to say paragraph 3 of Schedule 3 to the 2004 Act) as the "deeming provisions".  
3.	By letter dated 12th December 2007 the claimant's solicitors, Duncan Lewis and Co, replied.  They made various points but the gist of the letter, so far as relevant for present purposes, is that they asserted that there was a risk of the claimant being refouled by the Greek authorities.  They referred both to what he said about his experiences when he arrived in Greece in August 2007 and to other evidence of conduct by the Greek authorities incompatible with their obligations under the Refugee Convention.  I will return to these in more detail below.  They also referred to the decision of this court in Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin).  In that case McCombe J, in the context of the proposed return of a claimant to Greece, made a declaration under section 4 of the Human Rights Act 1998 that the deeming provisions were incompatible with the claimant's Convention rights: his decision is the subject of a pending appeal to the Court of Appeal which is due to be heard next month.
4.	The defendant replied on the same day.  The letter made various points on the specific matters raised by the claimant's solicitors.  The most important part of the letter for present purposes is at paragraphs 7 and following.  These repeat the reliance on the deeming provisions, which are said to remain effective notwithstanding the decision in Nasseri, with the result, it is said, that the defendant is not only entitled but obliged (specifically, by paragraph 3(2)(b) and (c)) to reject any claim that the removal of the claimant to Greece would involve a breach of his human rights.  The letter also formally certified, under paragraph 5(4) of Schedule 3 to the 2004 Act, that the claimant's claim that his removal to Greece would breach his human rights was clearly unfounded.  On that basis the letter made clear that the defendant intended to proceed with removal.  
5.	The claimant then issued the present proceedings.  On 24th January 2008 Munby J ordered a stay on his removal and an urgent oral hearing.  That is the matter before me.  I heard argument as part of a full list on Friday: because of the pressure of other business, I reserved the matter for judgment to today.  I have had helpful submissions from Mr Lee for the claimant and Mr Payne for the defendant.
6.	Mr Lee has helpfully clarified that he puts the claimant's case squarely on the grounds of what he says is a real risk of refoulement to Eritrea.  He does not rely on any other matters, and accordingly I need not be concerned with the certificate under paragraph 5(4) (which is directed at breaches of human rights otherwise than by way of refoulement ‑‑ see paragraph 5(5)).  He relies on Nasseri.  He submits that I must proceed, pending the outcome of the appeal, on the basis that the deeming provisions are incompatible with the claimant's Convention rights and that accordingly it would be unlawful to remove him to Greece in circumstances where the defendant has, avowedly, decided to consider his claim that he is at risk of refoulement. 
7.	There is obvious attraction in the submission that it cannot be right for the defendant to proceed with a removal on the basis of a statutory provision which has been the subject of a declaration of incompatibility; but Mr Lee had some difficulty in identifying on what basis such a removal could in fact be said to be unlawful.  The problem is that it is axiomatic that a declaration of incompatibility "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given" (see Section 4(6)(a) of the 1998 Act).  As the defendant has pointed out, paragraph 3 of Schedule 3 is in mandatory terms and positively requires not only her but the court to treat the countries listed in paragraph 2 as (in shorthand) "safe".  With some encouragement from me, Mr Lee suggested that it might be possible to treat the decision to remove as distinct from the decision not to consider the claimant's claim for asylum; but the more I think about it the more casuistical I find that argument.  I note that paragraph 3(1) is expressly directed to cases where the question arises of "whether a person who has made an asylum claim or a human rights claim may be removed".  
8.	I do not, however, believe that I need to resolve that difficult question in order to decide this application.  In my judgment, the question of incompatibility with the claimant's Convention rights only arises if the effect of the deeming provisions is to preclude the court from considering what would otherwise be an arguable claim that he would face refoulement in breach of his rights under Article 3 or the Refugee Convention.  If there is no arguable risk, those rights are not engaged.  Mr Lee submits that even the exercise of considering whether there is an arguable case is precluded by paragraph 3, but I do not agree: the deeming provisions only bite if there is a question in the first place.
9.	I do not consider that, on the evidence before me, the claimant has reached that threshold.  In order to explain that conclusion, I need to say a little bit more about the evidence on which he relies.  It consists, as I have said, partly of his evidence of his own experience when he arrived in Greece in August 2007, set out in a witness statement dated 13th December 2007; and partly of more general evidence, namely a report from a German‑based human rights group called Pro Asyl.  
10.	So far as the claimant's evidence of his own experience is concerned, what he says, in summary, is that he left Libya in a boat with other refugees and was in due course intercepted by "police" (probably in fact the coastguard) who escorted their boat ashore and took basic details and fingerprints from the refugees but did not offer them any opportunity to claim asylum.  He also describes some limited mistreatment.  He then says that after 24 hours the male refugees were put back in the boat and towed back out to sea.  He did not, he says, know at the time which country's police he had encountered.  The boat was finally intercepted by the Libyan authorities and in due course he made his way to this country via Sudan and Dubai.  Mr Payne points to various implausibilities in the claimant's account, but for present purposes I am prepared to assume it is true.
11.	As regards the Pro Asyl document, it alleges various serious irregularities in the conduct of the Greek authorities towards asylum seekers, specifically in the treatment of those who arrive by sea and are met by the coastguard, and at various border crossings, in particular the Turkish/Greek frontier, and on the eastern Aegean islands. 
12.	In my judgment, concerning as this evidence is, it has no bearing on the claimant's likely treatment if he is returned to Greece in the manner proposed by the defendant.  He will not be an 'irregular' asylum‑seeker appearing in Greek coastal waters to be picked up by the coastguard, or presenting himself at the border with Turkey.  He will, as evidenced by the terms of the letter dated 22nd November 2007 from the Head of the Aliens Division which I have set out, have been returned to Athens airport by specific arrangement with this country under the Dublin Regulation.  He will be expected and awaited by the appropriate authorities.  None of the evidence relied on by Mr Lee justifies the supposition that he will be treated irregularly or, more particularly, that the specific promise in the letter of 22nd November that he would be given the chance to apply for asylum will be broken.  
13.	I do not need to rely only on the terms of the letter of 22nd November.  Mr Payne put before me a witness statement from Laura Saunders, an Assistant Director in the Border and Immigration Agency and head of the Third Country Unit.  She says at paragraphs 3 and 4 of her witness statement:  
"(3) I had enquired with the Head of the Greek Dublin Unit about their procedures regarding asylum seekers who are returned to them, under the Dublin Regulation, and are considered to be 'take‑charge' cases (that is, they had not previously claimed asylum in Greece but had been apprehended as illegal entrants there prior to entering the United Kingdom).  I was informed that upon their arrival in Greece they are not automatically placed into the asylum system but are given every opportunity to claim asylum.  In this event they are held in a Holding Centre on arrival, which is either based at the airport or a Reception Centre, for approximately a day while their asylum application is recorded, they are fingerprinted, the paperwork is produced, and they are supplied with a 'pink' card which allows them to work and gives them access to benefits such as health care.  This means that they are entitled to work and access health care from their second day in Greece.   
 (4) If the returnee does not claim asylum upon arrival then they are placed into a Reception Centre for 2 to 3 days and then are released and informed they must leave Greece within a specified period. 
I see no reason to disbelieve that evidence, and Mr Lee could suggest none beyond the general proposition that if there was evidence that some agents of the police, coastguard or border guards could not be trusted it was wrong to trust any agency of the Greek government.  I do not accept that argument.
14.	I should add that Miss Saunders also says at paragraph 6 of her statement: 
"I am also aware that the Greek authorities are not currently removing Eritreans and therefore they are entitled to remain in Greece until further notice." 
That is encouraging, but it is not central to my decision.
15.	It follows, in my judgment, that even if Nasseri is rightly decided, and even if by one route or another the deeming provisions can properly be ignored notwithstanding that they remain unrepealed, no case has been shown that the removal of the claimant to Greece under the provisions of the Dublin Regulation would be unlawful.  I accordingly refuse permission to apply for judicial review and decline to continue the stay ordered by Munby J. 
16.	I have indicated in the course of argument that if I were to reach the decision which I have, and even if I were to refuse permission to appeal (which, subject to anything Mr Lee may wish to say, I am minded to do), I would be prepared to grant a stay conditional on the claimant making an urgent application for permission to appeal to the Court of Appeal, limited to the time in which any such application can be heard.  That would be not on the basis that I have any doubts about my decision, but because it seems to me important not to render the claimant's right of appeal to the Court of Appeal effectively nugatory by allowing him to be removed in the meantime.
17.	Mr Lee, you do not have to appeal but I thought I would deal with that now.  Do you want to ask for permission?
18.	MR LEE:  My Lord, I will, simply on the point which I expanded on in my earlier argument, concerning whether or not the court is entitled to effectively investigate the position as it seems to be in Greece under the deeming provision.  I will not rehearse the argument again, my Lord, but that is the sole point on which I can ask at this stage for permission to go up.
19.	MR JUSTICE UNDERHILL:  Thank you, Mr Lee.  I am afraid I am against you on that.  That being so, I imagine you would like the stay which I have offered.
20.	MR LEE:  Yes, please. 
21.	MR JUSTICE UNDERHILL:  For the reasons I have already given, I am going to grant the stay.  I am not sure I put it absolutely precisely.  I think the correct formulation is a stay on the removal of the claimant from the United Kingdom provided that within ‑‑ how long do you need?  Three working days?   
22.	MR LEE:  Certainly it can be lodged on Friday.
23.	MR JUSTICE UNDERHILL:  Provided that the claimant apply to the Court of Appeal for permission to appeal by no later than 4 pm on 8th February 2007 and prosecute that application diligently, in such case the stay to remain until the application be heard.
24.	MR PAYNE:  My Lord, I am instructed on two things.  I am instructed to ask for costs of the acknowledgment of service summarily assessed at £450.  Perhaps more unusually, I am instructed to ask if we could obtain a transcript of your judgment at public expense.
25.	MR JUSTICE UNDERHILL:  You do not have to ask, do you? 
26.	MR PAYNE:  We do at the permission stage. 
27.	MR JUSTICE UNDERHILL:  If you need permission, I will grant it.  If you want it quickly, that is really a matter for negotiation between you and the shorthand writer.  If permission is required, I give it.  So far as costs are concerned, you cannot object to that, can you, Mr Lee? 
28.	MR LEE:  No.
29.	MR JUSTICE UNDERHILL:  As a matter of principle you get the acknowledgment of service.  He is only asking for costs of the acknowledgment of service.  He might have tried, though he probably would not have succeeded, to get the costs of today.  That is quite modest and the sums are quite modest.
30.	MR LEE:  I might make the obvious observations as to the likelihood of ‑‑ 
31.	MR JUSTICE UNDERHILL:  That is obviously relevant to enforcement but it is not a reason why I should not order it.  
32.	MR LEE:  No.  I am instructed to ask for Legal Aid assessment. 
33.	MR JUSTICE UNDERHILL:  You can have a Legal Aid assessment.  How long do you want to pay?  I suspect of course, as in most of these cases, it is academic, but I do not know that it is academic.  For all I know he is sitting on a large sum of money.  I am inclined to say 28 days.  It is probably the last you will hear of it.  The claimant to pay the defendant's costs of the acknowledgment of service summarily assessed at £450 within 28 days.
34.	MR LEE:  My Lord, the last thing, just on the subject of the transcript, I am instructed to ask for an expedited copy of that transcript. 
35.	MR JUSTICE UNDERHILL:  You may be lucky here.  You are the one who wants it more urgently because you are going to appeal.  The Secretary of State wants it urgently for other reasons.  I am sure she will not be churlish enough not to give it to you when she gets it.  Are you instructed with regard to that, Mr Payne?
36.	MR PAYNE:  My Lord, I am sure I can persuade the Secretary of State. 
37.	MR JUSTICE UNDERHILL:  That saves the Legal Aid fund.  I imagine they will want it as quickly as you will.
38.	MR LEE:  I am grateful. 
39.	MR JUSTICE UNDERHILL:  I will allow counsel to have the uncorrected draft on the clear undertaking that as soon as a corrected draft becomes available the other one will be destroyed.
40.	MR PAYNE:  My Lord, the Secretary of State intends also to rely on your judgment in other permission applications.  As you know, permission applications are not ordinarily transcribed automatically. 
41.	MR JUSTICE UNDERHILL:  I have never quite understood what the status of that rule is, whether it is a convention or rule of practice.  I am not sure I said anything of enormous importance, but I can see if there are other such cases I have no objection to you making what you can of this judgment.