QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Saeedi
|- and -
|Secretary of State for the Home Department
Amnesty International Limited
The Aire Centre (Advice On Individual Rights In Europe)
- and -
United Nations High Commissioner For Refugees
Simon Cox and Shahram Taghavi (instructed by Simons Muirhead and Burton) for the First Interveners
Raza Husain QC and Samantha Knights (instructed by Baker and McKenzie LLP) for the Second Intervener
Hearing dates: 24-26 February 2010
Crown Copyright ©
Mr Justice Cranston:
The claimant's account
Outline of proceedings
Structure of the judgment
III ARTICLE 3 ECHR: LEGAL PRINCIPLES
Article 3 and removal
" The court has always been very cautious examining carefully the material placed before it in the light of the requisite standard of proof [before] finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting Chahal v United Kingdom 1 BHRC 405 it has only rarely reached such a conclusion."
" We would accept that the correct approach to the application of the Chahal test is that described in Karanakaran. The decision-maker should take a holistic approach; it should take account of all the relevant evidence and risk factors, giving to each matter such weight as it warrants, bearing in mind its importance in the context of the case and the extent to which it has been satisfactorily proved. It will be proper to exclude from consideration those matters which it can safely discard because it has no real doubt that they did not occur. The decision-maker should also take account of the absence of satisfactory information relating to matters of importance. If no evidence or information can be discovered on a matter of importance, its absence will be relevant to the assessment of future risk."
In Saadi the court said that the assessment of this minimum level of severity is relative, depending on all the circumstances of the case such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim: .
" It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed. I do not regard O'Rourke v United Kingdom (Application No 39022/97) (unreported) 26 June 2001, BAILII:  ECHR 889, as authority to the contrary [he did not apply for housing]: had his predicament been the result of state action rather than his own volition, and had he been ineligible for public support (which he was not), the court's conclusion that his suffering did not attain the requisite level of severity to engage Article 3 would be very hard to accept."
"Safe" third countries and human rights
"(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, and
(b) from which a person will not be sent to another State in contravention of his Convention [ECHR] rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."
"The person may not bring an immigration appeal by virtue of section 92(4)(a) of the Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded."
KRS v United Kingdom
"The presumption must be that Greece will abide by its obligations under those Directives. In this connection, note must also be taken of the new legislative framework for asylum applicants introduced in Greece Quite apart from that, there was nothing to suggest that an asylum seeker faced with unlawful refoulement to a country where he faced treatment contrary to Article 3 could not apply, in Greece, for a rule 39 indication against the Greek Government, even though the Greek Government had not specifically addressed this question in its recent letter": (p.17).
" [I]n the Court's view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece's obligations under [the Reception Directive] and Article 3 of [the EHCR]. However, for substantially the same reasons, the Court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court": (p.18)
Detention in Greece: Strasbourg decisions
IV THE DUBLIN REGULATION AND ITS CONTEXT
"Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law."
" Effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the member states, which has been enshrined in Articles 6 and 13 of the Human Rights Convention , this principle having furthermore been reaffirmed by Article 47 of the Charter of Fundamental Rights": Joined cases C-402/05 and C-415/05P, Kadi v Council of the European Union  ECR I-6351;  1 AC 1225, , -, , .
" Fundamental rights form an integral part of the general principles of law the observance of which the Court ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international instruments for the protection of human rights on which the member states have collaborated or to which they are signatories. The ECHR has special significance in that respect ... "
The court then referred to Article 6(2) of the Treaty on European Union and to the Charter. While the Charter was not (then) a legally binding instrument, the Community legislature acknowledged its importance by referring to it in the recitals to the Directive at issue in that case. The court added that the principal aim of the Charter was as stated in its preamble.
"No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."
"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice."
The Explanation on Article 47 states that the first paragraph is based on Article 13 of the European Convention on Human Rights, the effective remedy Article. However in European Union law, it continues, the protection is more extensive since it guarantees the right to an effective remedy before a court. Article 47 applies to the institutions of the European Union and "of Member States when they are implementing Union law and does so for all rights guaranteed by Union law." The Explanation then says that the second paragraph corresponds to Article 6(1) of the European Convention on Human Rights. In European Union law, however, the right to a fair hearing is not confined to disputes relating to civil law rights and obligations.
"The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law ..."
As regards the Member States, the Explanation makes clear that the Charter is only binding when they act within the scope of Union law. Paragraph 2, together with the second sentence of paragraph 1, confirm that the Charter may not have the effect of extending the competences and tasks which the Treaties confer on the Union. The Explanation also spells out that paragraph 2 confirms that the Charter may not have the effect of extending the field of application of Union law beyond the powers of the Union as established in the Treaties. Thus the reference to the Charter in Article 6 of the Treaty on European Union cannot be understood as extending by itself the range of Member State action considered to be the 'implementation of Union law' within paragraph 1.
"In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection."
The Explanation on Article 52(3) is that it is intended to ensure the necessary consistency between the Charter and the European Convention on Human Rights by establishing the rule that, in so far as the rights in the Charter also correspond to rights guaranteed by the European Court on Human Rights, their meaning and scope are the same as those laid down by the Convention. The meaning and the scope of the guaranteed rights is to be determined not only by the text of those instruments, but also by the case-law of the European Court of Human Rights and by the Court of Justice of the European Union. The level of protection afforded by the Charter may never be lower than that guaranteed by the Convention but it can be more extensive. The Explanation continues that the list of rights which may, at the present stage, be regarded as corresponding to rights in the Convention, as to meaning and scope, include Article 19(2), corresponding to Article 3 of the Convention as interpreted by the European Court of Human Rights. Articles where the meaning is the same as the corresponding Articles of the Convention, but where the scope is wider, include Article 47(2) and (3), corresponding to Article 6(1) of the Convention, but with the limitation to the determination of civil rights and obligations or criminal charges not applying as regards Union law and its implementation.
"The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms."
Article 2 continues that to the extent that a provision of the Charter refers to national laws and practices, it applies to the United Kingdom only to the extent that the rights or principles it contains are recognised in United Kingdom law or practices.
The Dublin Regulation
"A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community".
Recital (2) recalls that the European Council agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention to ensure that nobody was sent back to persecution "i.e. maintaining the principle of non-refoulement ... Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals". The European Council had also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application, a method based on objective, fair criteria both for the Member States and for the persons concerned. This method should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications: recitals (3)-(4).
"(8) The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the Treaty establishing the European community and the establishment of Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity."
Recitals (10) and (11) refer to the Eurodac fingerprint comparison system. Recital (12) reminds Member States that with respect to the persons falling within the scope of the Regulation they are bound by obligations under instruments of international law to which they are a party. Recital (15) explains that the Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular full observance of the right to asylum guaranteed by Article 18 is sought.
"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. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant."
"In the first place, it is clear that the Community legislature did not intend that the judicial protection guaranteed by the Member States whose courts may suspend the implementation of a transfer decision, thus enabling asylum seekers duly to challenge decisions taken in respect of them, should be sacrificed to the requirement of expedition in processing asylum applications."
Reception Conditions Directive, Procedures Directive and Qualification Directive
"[E]very applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure. Moreover, the procedure in which an application for asylum is examined should normally provide an applicant at least with access to the services of an interpreter for submitting his/her case if interviewed by the authorities, the opportunity to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR) or with any organisation working on its behalf, the right to appropriate notification of a decision, a motivation [reasons] of that decision in fact and in law, the opportunity to consult a legal adviser or other counsellor, and the right to be informed of his/her legal position at decisive moments in the course of the procedure, in a language he/she can reasonably be supposed to understand."
It is said that a basic principle of Community law is an effective remedy: recital (27). The Directive does not apply to the Dublin Regulation process itself: recital (29).
"(a) they shall be informed in a language which they may reasonably be supposed to understand of the procedure to be followed and of their rights and obligations during the procedure and the possible consequences of not complying with their obligations and not cooperating with the authorities. They shall be informed of the time-frame, as well as the means at their disposal for fulfilling the obligation to submit the elements as referred to in Article 4 of Directive 2004/83/EC [the Qualification Directive]. This information shall be given in time to enable them to exercise the rights guaranteed in this Directive and to comply with the obligations described in Article 11;
(b) they shall receive the services of an interpreter for submitting their case to the competent authorities
(d) they shall not be denied the opportunity to communicate with the UNHCR
(e) they shall be informed of the result of the decision by the determining authority in a language that they may reasonably be supposed to understand when they are not assisted or represented by a legal adviser or other counsellor and when free legal assistance is not available. The information provided shall include information on how to challenge a negative decision "
Articles 12 and 13 provide for the right to, and requirements for, a personal interview. Under Article 39 there is the right to an effective remedy against an initial refusal of asylum and Article 15(2) provides for free legal representation in such proceedings.
European Commission Actions against Greece
Sources of evidence and its treatment
(i) Nasseri/KRS evidence
"But there is no evidence, either in the documents before the Court of Appeal or the new evidence tendered to the House, that any Dublin returnee is in practice removed to another country in breach of his Article 3 rights ... I agree with Laws LJ that the absence of any evidence that such removals occur is of critical importance": (my emphasis).
(ii) Post Nasseri/KRS evidence
"Unaccompanied children caught up in the crackdown were among the many subsequently transferred to detention centres in the north, close to the Turkish border. From there, in secret night time operations, the Greek police forced dozens of migrants - possibly hundreds, including unaccompanied children and potential refugees - across the border into Turkey."
(iii) Conclusion on refoulement
Procedures for Asylum Claims
(i) Nasseri/KRS evidence
"The Ministry of Citizen's Protection assures that all asylum seekers who are sent back to Greece through the Dublin Procedure will have unimpeded access to an efficient and fair process."
That note had also explained the proposals for reform of the Greek asylum system and the interim arrangements whilst they were being introduced. As to detention conditions that note also asserted that detention conditions at the Petrou Ralli special migrants centre had been significantly improved. The authorities were doing their best to improve current conditions.
(ii) Post Nasseri/KRS evidence
(iii) Conclusion on procedures
Conditions in Greece
(i) Nasseri/KRS evidence
""It is impossible to respect the asylum seekers' legal protection and fundamental social rights with resources as limited as those made available by Greek authorities.
In our opinion the deficiencies in the Greek asylum process, documented through this report, entail that there is a discord between the preconditions on which the Dublin II Regulation was founded and procedural practices followed in Greece. In our opinion the Greek system does not guarantee even minimum basic legal protection for the asylum seekers".
"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": (para 36).
Laws LJ said:
"There are clearly concerns about the conditions in which asylum seekers may be detained in Greece. It is not however shown that they give rise to systemic violations of Article 3."
(iii) Post Nasseri/KRS evidence
"Dublin returnees are held at the Athens airport, usually for a period of 3 days and are then left to their own devices. If they find their way to the Asylum Division at Petrou Ralli Street, Athens, they are usually not allowed access because of the large number of people waiting outside the premises."
(iii) Conclusion on conditions
VI ISSUE 1: ARTICLE 3 ECHR, CERTIFICATION AND THE DEEMING PROVISION
Should the certificate be quashed?
"Like the operation of the Greek system for processing asylum applications and the conditions under which asylum seekers are kept, that is a Greek problem": .
In KRS v United Kingdom the Strasbourg Court adopted the same approach: there was a presumption that Greece would abide by its obligations, including those guaranteed by Article 3, and in the first instance matters should be taken up with the Greek domestic authorities (p.18).
The "deeming provision"
VII ISSUE 2: THE SOVEREIGNTY CLAUSE: ARTICLE 3(2), DUBLIN REGULATION
"if Greece were to recommence removals to Iran, the Dublin Regulation itself would allow the United Kingdom Government, if they considered it appropriate, to exercise their right to examine asylum applications under Article 3(2) of the Regulation" (p.17).
Secretary of State's policy in relation to Article 3(2)
Jurisprudence on Article 3(2)
"On the basis of the facts of the case, the court of decision is secure in its conviction that the respondent's discretion is reduced to zero ["Ermessensreduzierung auf Null"]. In this context, on the one hand the Chamber must consider the binding effect of Regulation (EC) No 343/2003 [the Dublin Regulations] which is based on the necessity to achieve an adequate allocation of tasks amongst the Member States of the European Union in order that the right to asylum can be guaranteed in practice. On the other hand, as above all expressed in the recitals cited, the Regulation virtually takes it for granted that a right to asylum binding for all member states exists and is actually applied promptly. These two considerations must be balanced."
Conclusion on Article 3(2)
" Those provisions must also, as is apparent from recital 10 in the preamble to the Directive, be interpreted in a manner which respects the fundamental rights and the principles recognised in particular by the Charter."