QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
(on the application of Saseendra Elayathamby)
|- and -
|The Secretary of State for the Home Department
Ms Lisa Giovanetti (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 29-30/6/2011
Crown Copyright ©
Mr Justice Sales :
"Noting that the United Nations High Commissioners for Refugees is charged with the task of supervising international conventions providing for the protection of refugees, and recognising that the effective co-ordination of measures taken to deal with this problem will depend upon the co-operation of States with the High Commissioner …"
"The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees … in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention."
"First List of Safe Countries (Refugee Convention and Human Rights (1))
2 This Part applies to - …
(c) Republic of Cyprus…
3 (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,
(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 than in accordance with the Refugee Convention.
4 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c.41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed –
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.
5 (1) This paragraph applies where the Secretary of State certifies that –
(a) it is proposed to remove a person to a State to which this Part applies, and
(b) in the Secretary of State's opinion the person is not a national or citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on –
(a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention, or
(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.
(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that 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. …"
The legitimate expectation argument
Although there are no provisions in the Immigration Rules for a person who is overseas to be granted entry clearance to come to the UK as a refugee, we do exceptionally look at individual applications made by mandate refugees, to see whether there is a case for admitting such a refugee to the UK outside the Rules.
It should be noted that mandate refugees are normally nominated for resettlement by the UNHCR. The administration of such referrals is undertaken by the British Red Cross (BRC) on behalf of UNHCR. However applications from mandate refugees may also be made at a post abroad.
BRC refer resettlement applications to Refugee Resettlement Programmes Unit (RRPU). This unit includes the specific casework team that deals with all such applications. RRPU also maintain a central record of these cases and must be informed, for record purposes, of the outcome of resettlement applications.
Because these cases normally involve refugees facing some threat to their safety or well-being in their present country of refuge, the general presumption should be that they attract some priority and should not be placed at the back of a queue of applications. …
Assessing the Claim of Those Mandate Refugees Referred by the BRC, or Who Claim in Person at a Post Abroad
Caseworkers should not need to assess the refugee status of a mandate refugee whose application is made abroad via UNHCR/BRC (for in-country applications see below). However, if the case has not been referred via UNHCR/British Red Cross, but has instead been referred by a British Post abroad as a result of an entry clearance application, caseworkers should confirm with UNHCR in London that the applicant has been recognised as a mandate refugee as claimed.
Consideration of the case should usually be limited to an assessment of:
- the applicant's circumstances in the present country of refuge;
- whether the UK is the most appropriate country for resettlement.
It may be that there is a case to be made for applicants to remain where they are or, alternatively, that there is a case for resettlement outside the present country of refuge to another safe third country.
The applicant must have close ties with the UK – usually close family, but also possible history (e.g. periods spent here as a student). …
Assessing the Claim of a Mandate Refugee Who Applies in-Country
If a mandate refugee makes an application for resettlement, after arriving in the UK, then they must be considered under the 1951 Convention, as opposed to the criteria above which relate solely to applications from abroad. …"
The refoulement argument
"Although in the T.I. case the Court rejected the argument that the fact that Germany was a party to the [ECHR] absolved the United Kingdom from verifying the fate that awaited an asylum seeker it was about to transfer to that country, the fact that the asylum procedure in Germany apparently complied with the [ECHR], and in particular Article 3, enabled the Court to reject the allegation that the applicant's removal to Germany would make him run a real and serious risk of treatment contrary to that Article. The Court considered that there was no reason in that particular case to believe that Germany would have failed to honour its obligations under Article 3 of the [ECHR] and protect the applicant from removal to Sri Lanka if he submitted credible arguments demonstrating that he risked ill-treatment in that country."
"… it was possible to assume that Greece was complying with its obligations and not sending anybody back to Iran, the applicant's country of origin.
Nor was there any reason to believe that persons sent back to Greece under the Dublin Regulation, including those whose applications for asylum had been rejected by a final decision of the Greek authorities, had been or could be prevented from applying to the Court for an interim measure under Rule 39 of the Rules of Court."
"(b) Application of these principles to the present case
344. The Court has already stated its opinion that the applicant could arguably claim that his removal to Afghanistan would violate Article 2 or Article 3 of the Convention (see paragraphs 296-297 above).
345. The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the K.R.S. case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case.
346. The Court disagrees with the Belgian Government's argument that, because he failed to voice them at his interview, the Aliens Office had not been aware of the applicant's fears in the event of his transfer back to Greece at the time when it issued the order for him to leave the country.
347. The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.
348. The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.
349. The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).
350. Added to this is the fact that since December 2008 the European asylum system itself has entered a reform phase and that, in the light of the lessons learnt from the application of the texts adopted during the first phase, the European Commission has made proposals aimed at substantially strengthening the protection of the fundamental rights of asylum seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights (see paragraphs 77-79 above).
351. Furthermore, the Court notes that the procedure followed by the Aliens Office in application of the Dublin Regulation left no possibility for the applicant to state the reasons militating against his transfer to Greece. The form the Aliens Office filled in contains no section for such comments (see paragraph 130 above).
352. In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. On the contrary, it considers it established that in spite of the few examples of application of the sovereignty clause produced by the Government, which, incidentally, do not concern Greece, the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.
353. The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention
(see, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, § 147, ECHR 2008-...).
354. The Court is also of the opinion that the diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee. It notes first of all that the agreement to take responsibility in application of the Dublin Regulation was sent by the Greek authorities after the order to leave the country had been issued, and that the expulsion order had therefore been issued solely on the basis of a tacit agreement by the Greek authorities. Secondly, it notes that the agreement document is worded in stereotyped terms (see paragraph 24 above) and contains no guarantee concerning the applicant in person. No more did the information document the Belgian Government mentioned, provided by the Greek authorities, contain any individual guarantee; it merely referred to the applicable legislation, with no relevant information about the situation in practice.
355. The Court next rejects the Government's argument that the Court itself had not considered it necessary to indicate an interim measure under Rule 39 to suspend the applicant's transfer. It reiterates that in cases such as this, where the applicant's expulsion is imminent at the time when the matter is brought to the Court's attention, it must take an urgent decision. The measure indicated will be a protective measure which on no account prejudges the examination of the application under Article 34 of the Convention. At this stage, when an interim measure is indicated, it is not for the Court to analyse the case in depth – and indeed it will often not have all the information it needs to do so (see, mutatis mutandis, Paladi v. Moldova [GC], no. 39806/05, § 89, ECHR 2009-...). In the instant case, moreover, the letters sent by the Court clearly show that, fully aware of the situation in Greece, it asked the Greek Government to follow the applicant's case closely and to keep it informed (see paragraphs 32 and 39, above).
356. The respondent Government, supported by the third-party intervening Governments, lastly submitted that asylum seekers should lodge applications with the Court only against Greece, after having exhausted the domestic remedies in that country, if necessary requesting interim measures.
357. While considering that this is in principle the most normal course of action under the Convention system, the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory. The Court notes that the applicant is represented before it by the lawyer who defended him in Belgium. Considering the number of asylum applications pending in Greece, no conclusions can be drawn from the fact that some asylum seekers have brought cases before the Court against Greece. In this connection it also takes into account the very small number of Rule 39 requests for interim measures against Greece lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in the other States.
358. In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.
359. The Government argued that the applicant had not sufficiently individualised, 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 (see, mutatis mutandis, Saadi, cited above, § 132)."
(i) As to the correct approach to assessing a claim of the kind under review here, the Grand Chamber confirms at para.  that there is a presumption that a Contracting State will respect its international obligations in asylum matters, which presumption has to be rebutted if the claim is to be made out. This is in line with the Grand Chamber's approving references to T.I. and K.R.S. at paras. - and with its use of the heading for the extended passage set out above - "Application of these principles to the present case" – which is a reference to the principles to be derived from T.I. and K.R.S.. Accordingly, in the present case, there is a significant evidential presumption that Cyprus does responsibly and properly act to assess asylum applications made to it in an effective manner which the Claimant has to rebut. The strength of that presumption appears from the other paragraphs in the judgment set out above, in particular at para. , where the Grand Chamber refers to a situation in which "reliable sources" have reported practices "which are manifestly contrary to the principles of the [ECHR]";
(ii) The Grand Chamber's adverse assessment of the position regarding risk of refoulement was based on a substantial number of reports listed at para. , most of them from respected international organisations, including a number from the UNHCR. Although in the present case there are adverse opinions on Cyprus's asylum procedures from certain local organisations (see para.  below), there is no equivalent pattern of adverse reporting from respected international organisations in the case of Cyprus;
(iii) The Grand Chamber emphasises at paras.  and  that considerable additional information has become available, and adverse reports have been forthcoming with greater frequency, since the ECtHR's decision in K.R.S. in 2008, when it still considered that it was acceptable for countries to send asylum seekers to Greece pursuant to the Dublin Regulation procedures. It thus appears from K.R.S. and M.S.S. that a degree of adverse commentary on a state's asylum procedures, even from highly respected sources such as the UNHCR, does not immediately lead to the conclusion that the presumption referred to above is rebutted;
(iv) The Grand Chamber emphasised that all the reports from 2008 in the case of Greece "agree" as to the practical difficulties encountered by asylum seekers in Greece, including by reference to the practice of the Greek authorities "of direct or indirect refoulement on an individual or a collective basis": para. . The words I have quoted are a reference to para. , where the Grand Chamber refers to persons simply being expelled by Greece across the border into Turkey, who were then sent back to Afghanistan without their applications for asylum being considered. There is no evidence of any equivalent practice being adopted by Cyprus. The pattern of the reports which I have reviewed in the case of Cyprus is very far indeed from showing agreement on the part of the leading international bodies that Cyprus's asylum procedures are deficient or that asylum seekers there cannot in practice have their claims for asylum considered effectively. Indeed, none of the respected international bodies such as those referred to in M.S.S. has said any such thing;
(v) The Grand Chamber emphasised that of "critical importance" to its assessment of the applicant's claim in M.S.S. (see para. ) was a letter dated 2 April 2009 from the UNHCR to the Belgian Government, in which the UNHCR stated that (notwithstanding the ECtHR's decision in K.R.S.) it maintained its adverse assessment of the Greek asylum system and recommended "that Governments should refrain from transferring asylum seekers to Greece and take responsibility for examining the corresponding asylum applications themselves …" (paras. -). No equivalent letter has been sent by the UNHCR in relation to removals to Cyprus. The UNHCR has not suggested that asylum procedures in Cyprus are deficient or in any way unacceptable;
(vi) The Grand Chamber considered the possibility of asylum seekers in Greece applying for interim measures from the ECtHR under Rule 39 to protect them against removal to a third country where they might be killed or suffer ill-treatment, but concluded that this potential layer of protection was illusory because of difficulties facing asylum seekers in Greece: paras. -. This conclusion is founded on findings at paras. - that there are major difficulties for asylum seekers in gaining access to the asylum procedure in Greece (including being deprived of all information about asylum procedures and how to make an application for asylum and in some cases being tricked by the police to discourage them from following the procedures), leading to the assessment at para. :
"As to access to the Court, although any asylum seeker can, in theory, lodge an application with the Court and request the application of Rule 39 of the Rules of Court, it appears that the shortcomings mentioned above are so considerable that access to the Court for asylum seekers is almost impossible. This would explain the small number of applications the Court receives from asylum seekers and the small number of requests it receives for interim measures against Greece."
There is no evidence of an equivalent pattern of conduct by the Cypriot authorities to deprive potential asylum seekers of all information about their rights or how to apply for asylum. There is no good basis in the evidence available about Cyprus for concluding that applications to the ECtHR for interim measures under Rule 39 are "almost impossible". This is a significant point, since the possibility of having access to the ECtHR to secure interim relief is an important safeguard against the possibility of refoulement to another country where there is a real risk for the individual of death or ill-treatment.
"… Cyrpus's extremely low recognition rate [of refugees] is not challenged by UNHCR. 'We believe it to be fair', said Betsy Grove, the outgoing head of UNHCR's office in Nicosia. 'The huge majority of cases are simply not refugees, but students or economic migrants who have been misled to believe that they should apply for asylum in order to prolong their stay in Cyprus'."
(i) No order was obtained from the court for expert evidence to be adduced. Had an application been made for such an order, it is very likely it would have been refused. At the very least, if the application was allowed, the Defendant would have been on notice that expert evidence was to be received by the court and would have had a fair opportunity to seek to obtain an expert report of her own;
(ii) The KISA report contained statements about the law in Cyprus and how it operates in practice, but the author of the report was not a lawyer, and indeed provided no information by reference to which the court could assess his expertise in relation to the matters dealt with in his report;
(iii) The report referred to statutory provisions and case law, but provided no translations of the full text of these materials by reference to which the court could assess the accuracy or intended meaning of what was stated in the report. There were points at which I found the report confusing and hard to follow;
(iv) The author of the report did not provide the standard statement to be expected in an expert opinion prepared for court proceedings, to confirm that he understood it to be his duty to report in a neutral and non-partisan way. In fact, since the author of the report did not refer to (let alone attempt to respond to or deal with) any of the international materials which tended to set out a picture contrary to that put forward in his report, the impression given was that this was a partisan report produced specifically to promote the Claimant's case rather than neutrally to inform the court about the position in Cyprus;
(v) It does not appear that the author of the report had sought any comment or response from the Cypriot authorities on the criticisms he made in his report;
(vi) Particularly given what appears to be the partisan nature of the report to favour the Claimant, it contained statements which in my view weighed heavily against the Claimant's case. At paragraph 35 the report referred to a set of cases in which protection against refoulement had not been forthcoming from the Cypriot authorities but where it had been possible to secure protection by a Rule 39 application to the ECtHR - i.e., unlike in the case of Greece, the ability of asylum seekers in Cyprus to gain effective access to the ECtHR to protect their Convention rights seems to be real and effective, rather than "illusory". At paragraph 61 - the critical paragraph of the report, where it refers to the danger of refoulement for returnees under the Dublin Regulation - the danger is simply asserted in bald and unparticularised terms, and the only supporting material referred to is that KISA is aware of at least one case (no details of date, name etc were provided) where access by a Dublin returnee to the asylum procedure "was restricted by the Police and the asylum seeker was to be deported" and "[a]ccess to the procedure was only made possible after the intervention by KISA" - i.e. even in what appears to have been a stray case where the procedures did not operate as they were supposed to, the actual outcome was that KISA was able to secure proper access to the relevant procedures for that individual;
(vii) Still more fundamentally, there is nothing in the Grand Chamber's judgment in M.S.S. to lend support to the idea that claims regarding potential violation of Convention rights on the basis of a refoulement argument should be determined by reference to expert opinions obtained for the purposes of court proceedings regarding the claims in question. The materials relied on by the Grand Chamber were not of that character. They were published reports from highly regarded bodies, of which the Greek government would obviously have been aware and in respect of which it would have had a full opportunity over several years to answer (if it could) any of the criticisms levelled against it. A private expert report of the kind commissioned from KISA by the Claimant is, in my view, in a completely different category. Other than in exceptional cases, I do not think it is appropriate for a refoulement argument of the kind made in M.S.S. and in this case to be mounted by reference to private expert reports. They will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S., and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument. I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports.
The conditions of detention argument
The living conditions argument