QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| M B
|- and -
SECRETARY OF STATE FOR HOME DEPARTMENT
MR ALAN PAYNE (instructed by THE TREASURY SOLICITOR) for the Defendant
Hearing dates: 22 & 23 January 2013
Crown Copyright ©
MR JUSTICE MITTING :
i) The Maltese authorities have said so. By an email sent on 14 January 2013, in response to a request sent on 9 January 2013, Neville Xuereb, Immigration Superintendent in Malta and the Maltese contact with the third country unit in UKBA, confirmed that all four claimants had made an asylum request, which had been rejected "even at appeal stage". There is no reason to doubt the good faith with which the information was supplied or its accuracy. As Mr. Nathan, counsel for the claimants, accepts, the Maltese authorities do respond promptly and accurately to requests for information about asylum seekers with whom they have dealt. It is not in the least likely that, in relation to the three claimants who say they did not make an asylum claim or receive notice of its outcome, the Maltese authorities should have made an identical mistake, still less provided information that they knew to be misleading.
ii) All four claimants arrived by boat off the shores of Malta. It would have been obvious to the Maltese authorities that they were seeking to escape from Africa. All four were fingerprinted and detained. The only means by which any of them could hope to stay lawfully in Malta was to apply for asylum or subsidiary protection there. They may not have known precisely how to set about doing do, but they would have been detained in detention centres with people who did know because, as is set out below, the great majority of those who have arrived by boat have claimed asylum: see the Human Rights Watch report of July 2012, "Boat ride to detention" page 19 which notes that 93% of the migrants who arrive in Malta by boat, almost all of whom are detained on arrival, apply for asylum.
iii) Malta has an efficient asylum processing system, with one of the lowest backlogs in Europe and a 58% rate of recognition for some form of protected status: ibid. (The percentage in recent years has been higher).
iv) The number of migrants arriving by boat has corresponded closely to the number of migrants who have had asylum claims considered. According to note 8 on page 14 of the Human Rights Watch report, 14,735 migrants arrived by boat from 2002 to 2011. During the same period 13,735 people applied for asylum. In 2011, 1,579 migrants entered by boat: ibid. Figures produced by UNHCR show that in 2011, 1,586 migrants had their claims determined. 68 were granted refugee protection and 811 subsidiary protection. 707 had their claims rejected. (Some, if not all, will have been amongst the 318 granted local temporary protection status in the same year). The average time taken to process an asylum claim, by 2009 was 5 – 6 months: see paragraph 45 of the report of the Commissioner for Human Rights of the Council of Europe, Thomas Hammarberg, dated 9 June 2011. The general pattern is clear: the great majority of those who arrive by boat claimed asylum. Their claims were dealt with efficiently and within a few months. There is no reason to believe that the experience of these claimants would have been different.
v) MB admits that he made an asylum claim and received two notices of rejection. This indicates that he appealed against the original decisions. As pro Asyl noted in their report of June 2012, nearly all rejected asylum seekers "file appeal". I am satisfied that MB did so and that his appeal was rejected.
vi) YT admits that he tried to claim asylum in Malta. I have no reason to doubt that he did. If he did so, it is inconceivable that the Maltese authorities would not have dealt with his claim and, if they rejected it, that he would not have appealed against rejection.
vii) TK deliberately suppressed the fact that he had landed in Malta and lived there for 2 ½ years, before departing finally for Italy. It was only when confronted with the result of the Eurodac search that he admitted those facts. He claimed asylum either immediately on arrival or very soon after arrival in the United Kingdom. I do not believe that he did not make a similar claim in Malta.
viii) GA admitted at his screening interview that he had claimed asylum in Malta, both in the narrative history of his travel prior to arrival in the United Kingdom and in response to a specific question. He had no reason to lie about that then. His more recent denial of making a claim is not credible. If he made such a claim, there is no reason to believe that the Maltese authorities would not have dealt with it.
The status of the claimants on and since their arrival in the United Kingdom
"(c) "Applicant" or "applicant for asylum" means a third country national or stateless person who has made an application for asylum in respect of which a final decision has not been taken.
(d) "Final decision" means a decision on whether the third country national or stateless person be granted refugee status by virtue of directive 2004/83/EC and which is no longer subject to a remedy within the framework of Chapter V of this directive irrespective of whether such remedy has the effect of allowing applicants to remain in the member state concerned pending its outcome…"
Chapter V sets out the framework for legislation in member states to determine asylum claims.
Article 25.2 permits member states to consider an application for asylum as inadmissible in certain specified circumstances. They are in addition to those identified in Article 25.1 as follows
"In addition to cases in which an application is not examined in accordance with Regulation (EC) No. 343/2003…"
That is a reference to Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third country national, commonly known as the Dublin II regulation.
"The member state responsible for examining an application for asylum under this regulation shall be obliged to…
e) take back under the conditions laid down in Article 20, a third country national whose application it has rejected and who is in the territory of another member state without permission."
Article 20 sets out obligations between the member states in those circumstances. It does not entitle the person taken back to revive his asylum application or to make a fresh one. European Union legislation relating to asylum imposes no relevant obligation on the United Kingdom or Malta in relation to the claimants other than upon Malta to take them back.
The impact of removal on the claimants' rights under Articles 3 and 5 of the European Convention on Human Rights
"However in reaching this conclusion, the court would underline that it agrees with Lord Browne's observation in Wellington that the absolute nature of Article 3 does not mean that any form of ill-treatment will act as a bar to removal from a contracting state. As Lord Browne observed, this court has repeatedly stated that the Convention does not purport to be a means of requiring the contracting states to impose Convention standards on other states…This being so, treatment which might violate Article 3 because of an act or omission of a contracting state might not attain the minimum level of severity which is required for there to be a violation of Article 3 in an expulsion or extradition case. For example, a contracting state's negligence in providing appropriate medical care within its jurisdiction has, on occasion, led the court to find a violation of Article 3 but such violations have not been so readily established in the extra-territorial context (compare the denial of prompt and appropriate medical treatment for HIV/Aids in Aleksanyan v. Russia…with N v. UK…"
In a "foreign" case, the burden of proof is lower. An applicant is required to establish substantial grounds for believing that if removed to another state he faces a real risk of being subjected to treatment contrary to Article 3. If he does so, the removing state is prohibited from deporting him there: Saadi v. Italy 37201/06  ECHR 179 § 125. However,
"Article 3 principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-state bodies when the authorities are unable to afford the applicant appropriate protection…"
N v. UK 26565/05 27 May 2008 § 31.
"A flagrant breach of Article 5 would occur only if, for example, the receiving state arbitrarily detained an applicant for many years without any intention of bringing him or her to trial. A flagrant breach of Article 5 might also occur if an applicant would be at risk of being imprisoned for a substantial period in the receiving state, having previously been convicted after a flagrantly unfair trial."
"78. Consideration of the texts which constitute the common European asylum system shows that it was conceived in a context making it possible to assume that all the participating states, whether member states or third states, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the member states can have confidence in each other in that regard.
79. It is precisely because of that principle of mutual confidence that the European Union legislature adopted regulation no. 343/2003 and the conventions referred to in paras 24 -26 of the present judgment (agreements with Denmark, Iceland, Norway and Switzerland) in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on state authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principle objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating member states.
80. In those circumstances, it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of the Charter, the Geneva Convention and the ECHR.
81. It is not however inconceivable that the system may, in practice, experience major operational problems in a given member state, meaning that there is a substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights.
82. Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the member state responsible will affect the obligations of the other member states to comply with provisions of regulation no. 343/ 2003.
83. At issue here is the raison d'etre of the European Union and the creation of an area of freedom, security and justice and, in particular, the common European asylum system, based on mutual confidence and a presumption of compliance by other member states, with European Union law, and, in particular, fundamental rights…
85. If the mandatory consequence of any infringement of the individual provisions of Directive 2003/9, 2004/83 or 2005/85 by the member state 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 III 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 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."
The court went on to find that there were substantial grounds for believing that there were systemic flaws in the asylum procedure and reception conditions for asylum applicants in Greece.
"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 the applications lodged there at this point in time are illusory."
In the light of its conclusion that the Belgian authorities knew or ought to have known that the applicant had no guarantee that his asylum application would be seriously examined by the Greek authorities, they were obliged not merely to assume that he would be treated in conformity with Convention standards, but had first to verify how the Greek authorities applied their legislation on asylum in practice: § 359. In what may have been a reference to the high standard of proof ordinarily required in a case brought against a contracting state, the court observed that (because) the general situation was known to the Belgian authorities "the applicant should not be expected to bear the entire burden of proof": § 352. The conclusion of the court can, I believe, be summarised by the following proposition: when it is established that there are substantial grounds for believing that there are systemic failures in the system for handling asylum applications in a contracting state and/or systemic breaches of Article 3 in that state in relation to asylum seekers, and access to the Strasbourg Court to complain about those circumstances is "illusory", an applicant need do no more, to establish that removal by the sending state would infringe his rights under Article 3. In addition, where it is alleged that removal to a contracting state will result in his removal from that state to another state in which he will be exposed to treatment contrary Article 3, the removing state has a responsibility to ensure that expulsion will not result indirectly in exposure to such treatment. This does not require the expelling state to determine the merits of the underlying claim, merely to determine that procedures in the contracting state to which he will be expelled afford adequate protection against further removal in breach of Article 3: see the admissibility decision in TI v. UK 43844/98 7 March 2000. MSS is a striking example of that approach in practice.
"…shall apply to all third country nationals and stateless persons who make an application for asylum at the border or in the territory of a member state so long as they are allowed to remain on the territory as asylum seekers…"
Article 2(c) defines "asylum seeker" as,
"A third country national or a stateless person who has made an application for asylum in respect of which a final decision has not yet been taken. "
Because final decisions have been taken in the cases of each of the claimants, none of them would, on return to Malta, be entitled to the benefit of the Reception Directive. In consequence, it is not arguable that the Maltese authorities would be obliged to make provision for their accommodation and sustenance to avoid a breach of Article 3.
"The account set out below summarise the claimant's cases at face value. This is because, when deciding whether an asylum claim is capable of succeeding, it is ordinarily necessary to take the facts at their highest in the claimant's favour."
This is, or perhaps, may be, an accurate statement of asylum law, but it is not in point. This is not an asylum claim. The claimants do not contend that Malta is their country of origin or that they have a well-founded fear of persecution in Malta for a Refugee Convention reason. Theirs is a claim, in European Union and Convention law that removal to Malta would infringe their human rights under Article 4 of the Charter and Articles 3 and 5 of the Convention. As I have attempted to demonstrate, different standards, settled by Strasbourg case law apply: proof to a high standard, with the aid of presumptions, in a "domestic" case and substantial grounds for believing that there is a real risk in a "foreign" case. In neither is an applicant's case required to be taken at its highest. The same considerations may also have applied in EM. They undoubtedly apply in this case where none of the claimants can properly be categorised now as asylum seekers.
An alternative scenario
i) On the evidence which I have considered, I have no doubt that none of the claimants are or would, on return to Malta, be asylum seekers.
ii) Accordingly, any observations which I might make about the system for dealing with asylum claims or the conditions of detention or of sustenance after release of asylum seekers, would be obiter.
iii) Most significantly, the evidence which I have considered and set out above satisfies me that all or almost all cases of those who have arrived by boat in Malta and claimed asylum there will, by the time that they arrive in the United Kingdom, be failed asylum seekers, so that their claims fall outside the EU regime for dealing with asylum claims, except for the Dublin II Regulation and cannot succeed as human rights claims applying either of the two settled approaches adopted by Strasbourg to such claims. My observations would, therefore, not only be obiter, but of no practical value.