England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/02/2013

MR JUSTICE MITTING :

Facts

1. M B (MB) is a 27 year old Eritrean national. He arrived in the United Kingdom on or shortly before 27 December 2011 and claimed asylum. At a screening interview conducted at a police station in Cheltenham on 28 December 2011 he claimed to have travelled from Eritrea to Ethiopia in 2004, then to Sudan in 2006 and then to Libya. From there he departed for Italy on 7 December 2011. His fingerprints were taken in Italy on 9 December 2011. He then left for Paris, was caught by the police and told to leave within 7 days. He left for the United Kingdom on 26 December 2011. He made no mention of Malta.
2. The account given by him in his screening interview was in significant part false. Eurodac checks revealed that he had been fingerprinted in Malta on 4 September 2008. When this fact was disclosed to him, he said that he had arrived in Malta by boat from Libya in July 2008. He left Malta on 10 December 2011 for Italy, arriving in early December 2011. His account of the remainder of his journey was the same. In an unsigned and undated witness statement he said that he fled Eritrea, to avoid persecution for practising his Pentacostal faith and to avoid military service. He went to Ethiopia, from where, in 2006, he left for Sudan, where he stayed for two years. He then travelled to Libya in 2008, was detained and only released from prison on paying a bribe. He travelled to Malta on 7 July 2008, by boat. Three passengers, including his then partner, died on the journey. He was held in detention in Malta for 14 months. He claimed asylum whilst in detention and received assistance from Medecins Sans Frontieres. He was handed his asylum refusal letter on the day of his release. He lived in friends' houses and worked for contractors for little money. He left Malta on 10 December 2011 "because of the lack of support that I was getting from the authorities".
3. In a further statement signed and dated 8 October 2012, he confirmed the account given in the earlier statement, with minor corrections. He said that he left for Ethopia in 2004. He arrived in Malta on 10, not 7, July 2008. The three fatalities occurred when the boat in which he was travelling capsized. He said that "at no point in detention was I approached by the Maltese authorities about my asylum claim and received no legal assistance". He was, however, handed a second asylum refusal letter by the Maltese Immigration Authorities. During his detention, he was seen by a doctor and treated and referred by a charity to Medecins Sans Frontieres. He was examined by a psychologist every month. After his release, he was placed into an open camp in Halfa, where he lived in a tent with 25 other people. There were unclean communal toilets and baths outside the tent. He was fed packed food, provided by a charity. He stayed there for about a year and then left, surviving by working illegally and living "as a homeless person".
4. MB, therefore, accepts that an asylum claim was made either by, or in respect of him, to the Maltese authorities and was refused. For reasons explained below, the fact that he received a second refusal letter is cogent evidence that an appeal was made by him, or on his behalf, against first refusal. On his own account, he lived in Malta as a failed asylum seeker for about 2 ¼ years before leaving Malta.
5. On 19 January 2012, the Maltese authorities accepted that, pursuant to Council Regulation 343/2003 ("Dublin II") they were responsible for MB and agreed to take him back. On 23 January 2012, the SSHD notified MB that she declined to examine his asylum claim on the basis that Malta had accepted responsibility under Dublin II and certifying that the conditions set out in paragraph 4 and 5 of schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act) were met ("a third country certificate"). Removal directions were set for 1 February 2012. That prompted this claim and MB's representations that removal to Malta would infringe his rights under Article 3 of the European Convention on Human Rights (ECHR). That claim has since been expanded to include a claim that removal would also involve a breach of his rights under Article 5 ECHR. On 16 January 2013, the SSHD certified MB's claim as "clearly unfounded" under schedule 3, part 2, paragraph 5(4) of the 2004 Act. ("a clearly unfounded certificate").
6. Y T (YT) is an Eritrean national. There is a dispute about his date of birth. He claims to be 18, but there are grounds to believe that he is now, just, 23. He arrived in the United Kingdom on or shortly before 2 August 2011. During a screening interview conducted on 8 August 2011, he claimed to have left Eritrea finally in 2001, for Sudan, where he stayed until 2005. He then went to Libya, where he remained until 2007. He then went to Malta by boat. He spent four years in Malta, including one in prison. He then went to Italy and from Italy to France and then to the United Kingdom. He said that he had been sent around €4000 by an aunt who worked in Dubai earning US$80 per month, as a domestic worker. Before the screening interview, a Eurodac search had been conducted which revealed that he had been fingerprinted in Malta on 23 July 2007. In the interview, he accepted that he had been. He also accepted that he had claimed asylum in Malta, "but not granted any status". He gave as his reason for claiming asylum that he wanted to convert to Pentacostal Christianity and wished to avoid military service in Eritrea.
7. In a witness statement dated 17 March 2012, he said that he was detained in Malta having tried to claim asylum there. He was detained for over a year in a detention centre and later a warehouse, similar to a hangar. Conditions in detention were very bad and overcrowded and he was only given two meals a day. He was hit by officers with batons. He received no legal advice or assistance and was not told how to make applications to remain in the country. After detention for more than a year, he was released and told to carry on with his life. He said that he gave an incorrect date of birth to the Maltese authorities, stating that he was aged over 18 years.
8. For reasons explained below, I am satisfied that YT made an asylum application in Malta, that it was rejected and that an unsuccessful appeal was made by him or on his behalf. On that premise, but otherwise on his account, he lived as a failed asylum seeker in Malta for just under three years. He has given no account of how he lived during that time.
9. On 12 September 2011, the Maltese authorities accepted that pursuant to Dublin II they were responsible for YT and would take him back. On 14 September 2011 the SSHD issued a third country certificate. On 19 October 2011, she set removal directions for Malta. This claim followed, in which YT alleged that his removal to Malta would infringe his rights under Article 3 ECHR, subsequently expanded to include the claim that removal would infringe his rights under Article 5. On 14 March 2012, the SSHD rejected his claim and issued a clearly unfounded certificate.
10. T Kilflemarim (TK) is a 21 year old Eritrean national. He arrived in the United Kingdom on or shortly before 22 December 2011 and claimed asylum on the same day. At a screening interview conducted on that day, he said that he left Eritrea in 2006 for Sudan and stayed there for three years. From there he went to Libya and stayed there until "about two months ago" (i.e. until September 2011). He then went to Italy by boat, where he stayed for a month and then to France by train, where he also stayed for a month. A significant part of this account was false. A Eurodac check revealed that he had been fingerprinted in Malta on 4 September 2008. When this was put to him on 5 January 2012, he admitted that he was fingerprinted in Malta on arrival and said that he had stayed there for approximately 2 ½ years. He had been detained for 18 months. He said that he left Malta for Italy in June 2011 and stayed there for four months. From there he left for France. He said that he left his home country in 2006.
11. In an undated and unsigned witness statement made in 2011, he claimed to be in fear of return to Eritrea because he is a Christian Pentacostal and because he had evaded military service there. He said that he left Eritrea in December 2006, for Sudan, where he stayed until July 2007 and then went to Libya. He was detained there for six months but released after bribing a guard. In July 2008 he travelled by boat to Malta. On arrival, he was taken to a detention centre at Halfar and fingerprinted. He said that he shared a cell 4 metres by 4 metres with 30 other detainees, with inadequate toilet and showering facilities. He was detained for one year and six months and "never approached by any of the Maltese authorities or immigration officials". He was not told why he was being detained nor asked why he had fled his country. He was then released to another facility where he shared an overcrowded tent with about 40 people. In 2010 he attempted "to cross the border to Italy", but was caught on a boat, taken back to Halfar detention centre, told that he had attempted "to illegally cross the border" and sentenced by a judge to six months imprisonment. After his release, he stayed in Malta for three months, sleeping rough and left in February 2011 for Italy with the help of an agent. He stayed in Italy for four months, and then travelled to France in June 2011. He stayed in Calais for six months and came to the United Kingdom on the back of a lorry on 22 December 2011.
12. In a second witness statement signed and dated 8 October 2012, TK said that he left Sudan in December 2005, not 2006. Accordingly, he stayed in Sudan for 18 months, not six months. He then said that he went to Libya and then to Malta in July 2008 as before. He repeats his complaints about the circumstances of his detention in Malta and that he was never approached by Maltese authorities or immigration officials to ask why he had fled his country: "At no point at all in the time I remained in detention did any Maltese officials ask about my asylum claim". He then repeated, in the same terms, his account of events after his release from detention in Malta.
13. For the reasons set out below, I am satisfied that an asylum claim was made by him or in respect of him while he was in detention in Malta and rejected. I am also satisfied that an appeal against that decision was made by him or in respect of him and also rejected. On that premise, but otherwise on the basis of his own account, he was a failed asylum seeker in Malta for about a year and a quarter before he left, finally, for Italy in February 2011.
14. On 20 January 2012, the Maltese authorities accepted that pursuant to Dublin II they were responsible for TK and would take him back. The SSHD issued a third country certificate on the same date. On 24 January 2012 removal directions were set for 1 February 2012. That prompted these proceedings, in which it is claimed that the removal of TK to Malta would infringe his rights under Article 3 ECHR. On 26 January 2012 the SSHD rejected that claim and issued a clearly unfounded certificate.
15. G A is a 24 year old Ethiopian national of Oromo decent. He arrived in the United Kingdom on or soon before 13 January 2012 and claimed asylum. A Eurodac check made on 13 January 2012 revealed that he had been fingerprinted in Malta on 11 September 2008. His screening interview took place on 16 January 2012. He said that he had left Ethiopia in September 2007, for Sudan, where he stayed for one month and three weeks. He left for Libya, where he stayed until 2008, when he left by boat for Malta. He said that he was detained in Malta "for a month or two", was fingerprinted and claimed asylum. He was released "after a year in detention" and went to Italy by boat in November 2011. From there he left for France by train. He confirmed in response to specific questions, that he had been fingerprinted in Malta and had claimed asylum there. In a witness statement signed and dated 23 November 2012 (but headed "statement of 11 October 2012"), he said that he fled Ethiopia because of his support for the Oromo Liberation Front. He gives an account of events before his arrival in Malta consistent with his screening interview. He said that he travelled from Libya to Malta in a boat with about 79 other people in a voyage of three days. Before he got to Malta "the navy arrived and diverted the boat". He and the others were given water, their fingerprints were taken and they were taken to prison, where he stayed for one year. He said that there were about 100 people in each room, about four metres by ten metres. They were fed three meals a day, of small amount. "Personal hygiene" was very bad and there were small toilets in the corner of the room. After a year, he was discharged to an overcrowded tented facility. He was given €130 per month to buy food. This payment ceased after a year and a half and he was told to leave the camp. He then stayed with Roma people for about six months and finally left for Italy. Contrary to what he had said in his screening interview, he said that he did not claim asylum: "I did not claim asylum, no-one came to ask me about my case and no-one came to offer any legal help".
16. For the reasons set out below, I am satisfied that a claim for asylum was made by or in respect of GA and rejected. I am also satisfied that an appeal against that decision was made by him or in respect of him and also rejected. On that premise, but otherwise on the basis of his own account, he was a failed asylum seeker in Malta for about 2 years and 2 months before leaving for Italy in November 2011.
17. On 31 January 2012 the Maltese authorities accepted that pursuant to Dublin II they were responsible for GA and would take him back. According to the immigration factual summary, the SSHD issued a third country certificate on 1 February 2012. For reasons which are not explained, a second third country certificate was issued on 14 March 2012. This anomaly is immaterial. On 3 February 2012, removal directions were set for 14 February 2012. That prompted these proceedings, claiming that removal to Malta would infringe GA's rights under Article 3 ECHR. On 16 January 2013 the SSHD refused to accept that claim and issued a clearly unfounded certificate.
18. The reasons why I am satisfied that all four claimants made asylum claims on arrival in Malta and that they were rejected at first instance and on appeal are as follows.

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.

19. Before the hearing got properly underway, Mr. Nathan applied for an adjournment to permit further information to be obtained from the claimants and the Maltese authorities. He told me, and I accept, that the information contained in Neville Xuereb's email of 14 January 2013 was not disclosed to him and his instructing solicitors until Thursday 17 January, five days before the hearing. While I accept that it would have been of value to have received more detail from the Maltese authorities about the processing of the claimants' asylum claims and the period of their detention, and would have adjourned the case had there been any reason to doubt the basic information provided in the email of 14 January, it was not necessary to do so. For present purposes, all that matters is the basic information provided. Further, Mr. Nathan frankly told me that he and those instructing him had contemplated asking the Maltese authorities for details of the claimants' cases. They decided not to do so, to avoid opening, a "Pandora's Box". He made the conscious tactical decision to rely on the proposition that the claimants' account of their time in Malta must, for present purposes, be taken at its highest. For reasons explained below, I do not accept that this is a sound proposition, but I understand the reasons for making that decision: if his proposition is right, the claimants would have gained nothing by running the risk of unearthing information which might have undermined their case. This was a professionally proper decision to take, but the claimants must live with the consequences of taking it. In the event, I am satisfied that no injustice has been caused to the claimants by refusing the adjournment.

The status of the claimants on and since their arrival in the United Kingdom

20. Article 2 of Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedure in member states for granting and withdrawing refugee status ("The Procedures Directive") contains the following definitions:

"(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.

21. The effect of these provisions of European Union legislation are clear beyond argument. The Procedures Directive does not impose upon a member state which is not responsible for examining an application for asylum under the Dublin II regulation an obligation to consider and determine the application. A person who makes an application for asylum in that member state is not an "applicant for asylum" as defined in Article 2(c), because a final decision has already been made by the responsible member state under the Dublin II regulation. The claimants are not, therefore, asylum seekers. They are failed asylum seekers. Neither the United Kingdom nor Malta owe to them any duty imposed by European Union legislation further to consider their asylum claim. (I do not know whether Malta has a provision equivalent to paragraph 353 of the Immigration Rules pursuant to Article 32 of the Procedures Directive which might impose a duty under Maltese law to consider a further application by one or more of the claimants. In any event, none of them have stated any ground upon which such a claim could be made).
22. This conclusion has a significant consequence. Malta was the member state responsible for examining the claimants' applications for asylum under Article 10.1 of the Dublin II regulation. It has done so and rejected them. Accordingly, its obligation to take the claimants back arises under Article 16.1(e):

"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

23. The claimants contend that to remove them to Malta would expose them to inhuman and degrading treatment and/or to unlawful detention contrary to Articles 3 and 5. They contend that the SSHD was not entitled to certify their claims as clearly unfounded and that, applying my own judgment to their prospects of success in an appeal to the First Tier Tribunal, I should conclude that their claim is not so clearly without substance that an appeal is bound to fail. The test is well known and long established and need not be further analysed. The claimants contend that their own evidence and the reports of reputable international bodies establish that conditions in Malta are such that the Maltese state is in systemic breach of its obligations under Articles 3 and 5 (and also under Article 4 of the Charter of Fundamental Rights of the European Union 2000/364, which is in identical terms to Article 3 ECHR). In principle, this raises the question addressed by the Strasbourg Court in KRS v. UK [2008] ECHR 1781 and in MSS v. Belgium and Greece [2001] ECHR 108; and by the Luxembourg Court in NS v. SSHD [2012] 3WLR 1374. In practice, it does not, for reasons which I explain below.
24. Strasbourg applies different tests to applications brought in respect of treatment by a member state against that state from those which it applies to "foreign cases" – those in which a member state proposing to remove a person to another state may be in breach of its obligations to that person by reason of circumstances which will arise in that other state. In Article 3 cases about conditions in a member state, an applicant is required to prove to a high standard that he will be subjected to inhuman or degrading treatment. It must be proved "beyond reasonable doubt": Ireland v. UK [1978] 2EHRR 25 § 161. Presumptions may aid proof: a breach may be established by the "existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact": Jasar v. Macedonia 69908/1 15 February 2007 § 48. Attainment of the minimum level of severity to establish a breach of Article 3 may, however, be easier to establish in a contracting state than in a non-contracting state: Babar Ahmad v. UK 24027/07 & Others 10 April 2012 § 177:

"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 [2008] 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.

25. The difference is even more stark in the case of Article 5. In an application complaining of unlawful detention in a contracting state, all that needs to be established is that the detention is unlawful under Article 5. In a "foreign" case, what must be established is "a real risk of a flagrant breach of that Article": Othman v. UK 8139/09 17 January 2012 § 233. A high threshold applies:

"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."

ibid

26. When the receiving state is a member state and a contracting state, which standard is to apply? The Luxembourg Court has given a clear and unequivocal answer in NS v. SSHD at 1431 – 2:

"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.

27. The position of the Strasbourg Court is less clear, but not, in my opinion, inconsistent with that of the Luxembourg Court. In MSS v. Belgium and Greece 30696/09 21 January 2011, in response to the submission of the Belgian government supported by third party intervening governments, that asylum seekers should lodge applications with the Court only against Greece, the Court observed at§ 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 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.

28. In EM (Eritrea) v. SSHD [2012] EWCA Civ 1336, the Court of Appeal held that the decision of the Luxembourg Court in NS which, of course, has binding force in the United Kingdom, required it to hold that only proof of a systemic deficiency in a state party to the Dublin II Regulation required a second state to exercise its power under Article 3(2) of the regulation to entertain an application for asylum or humanitarian protection and to refrain from returning the applicant to the state of first arrival: § 62. If, contrary to my finding, any of these claimants had an outstanding asylum application claim pending in Malta, this decision would require me to dismiss their claim under European Union law. In fact, the claimants do not get that far, for the reasons explained above. Their claims for asylum have been rejected. They are simply individuals who have entered the territory of the United Kingdom unlawfully. Under EU law, the defendant is entitled, without more, to remove them to Malta under Article 16.1(e) of the Dublin II Regulation. Not even systemic failure in Malta would prohibit it.
29. On the facts, the position under the Convention is no less clear. This is a "foreign" case. If the "foreign" tests established by Strasbourg in Articles 3 and 5 cases apply, the answer is straightforward. Article 3 imposes no general obligation on a contracting state to refrain from removing a person to another state or territory in which he would be destitute. Even in a "domestic" case, "it is not the function of Article 3 to prescribe a minimum standard of social support for those in need….that is a matter for the social legislation of each signatory state", per Lord Scott at § 66 in Limbuela v. SSHD [2006] 1AC 396. It is only when deliberate state action is taken, by prohibiting a person from providing for his own sustenance by work and then removing from him the provision of accommodation and the barest necessities of life, that a breach of Article 3 will occur: per Lord Bingham at § 6 and 7 and per Lord Hope at § 56. In a "foreign" case, wholly exceptional circumstances such as those obtaining in D v. UK 30240/96 15 October 1996 may engage Article 3 and prohibit removal by a contracting state. Otherwise, "the fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the contracting state is not sufficient in itself to give rise to breach of Article 3": N v. UK § 42. The situation of these claimants is plainly not exceptional. They are all fit, young single men. It is common ground that Maltese law does not now prohibit them from working. They may be provided with rudimentary accommodation and very modest financial support, but even if they were not, Article 3 would not be engaged – not even in Malta and certainly not in the UK.
30. In MSS the Strasbourg Court found that by reason of the inaction of the Greek authorities, which reduced the applicant to destitution, they were in breach of Article 3, despite the lack of any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living: § 249 and 263. The reason why inaction gave rise to a breach of Article 3 was that "the obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes community law, namely Directive 2003/9 EC laying down minimum standards for the reception of asylum seekers in member states ("the Reception Directive")". This reasoning cannot avail these claimants. Article 3 of the Reception Directive provides that it

"…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.

31. Under Convention law, for reasons explained above, removal might be prohibited if there were serious grounds for believing that there was a real risk that the claimants would be removed by Malta to a country or territory in which they would be exposed to torture or inhuman or degrading treatment. In none of the voluminous objective material adduced in these cases, is there any suggestion that Malta removes people in those circumstances. All of the complaints are about the manner in which claims for asylum are processed, the detention of asylum seekers and the conditions into which they are released in Malta once detention ceases. There are no grounds, let alone substantial grounds, for believing that these claimants will be expelled by Malta to Eritrea or Ethiopia in breach of Article 3. The facts set out in A v. Federal Office of Migration, a judgment of the Federal Administrative Court of Switzerland of 2 October 2012 do not cast doubt on that proposition. On 5 January 2010, the appellant, a Libyan national, arrived by air in Malta with a Schengen visa. He departed on the following day for Switzerland and claimed asylum six days later. The Federal Court held that Switzerland could not expel him to Malta because the Maltese authorities intended to deport him to Libya after the expiry of his Schengen visa. This was based on an email of unknown date sent by the Maltese authorities to the Federal Office of Migration, which stated, "It would be highly appreciated if you could send the passport through an escort as we require the passport to repatriate the alien due to the expired visa". It is unclear from the report what caused the Federal Court to find, as it must have done implicitly, that Malta would not fulfil its obligation under the Dublin II Regulation to examine the appellant's claim to asylum. If it reached that conclusion, it flies in the face of the evidence referred to above which demonstrates that Malta does determine all asylum claims made to it. If the conclusion was well-founded in the case of A, it establishes no more than an isolated departure from normal practice, incapable of giving rise to the conclusion that there are substantial grounds for believing that these claimants would face a similar risk.
32. The answer to the Article 5 issue is no less clear. In Louled Massoud v. Malta 24340/8 27 July 2010, the 4^th section of the Strasbourg Court held that Malta's detention of the applicant was unlawful under Article 5. He had arrived by boat in Malta on 24 June 2006 and was served with a removal order and detained administratively. On 28 June 2006, he was charged with a criminal offence and remanded in custody. On 25 October 2006, he was convicted and sentenced to 18 months imprisonment. On 17 April 2007, he applied for asylum. His claim was rejected on 24 April 2007. His appeal against that decision was rejected on 18 July 2007. On 27 June 2007, at the conclusion of his sentence, he was released from prison and placed in administrative detention, where he remained, pending removal, until 6 January 2009. Maltese policy but not, in the view of the Strasbourg Court, law, set maximum limits for administrative detention at 12 months for those whose asylum claims were pending and at 18 months for those whose claims had been rejected. The Maltese authorities claimed to have experienced difficulties in obtaining documents to permit the removal of the appellant to his country of origin, Algeria. They were criticised as inadequately vigorous. The court expressed grave doubts about whether the grounds for the applicant's detention remained valid for the whole period of his detention: § 69. Its conclusion was that he had been subject to a period of detention which was in principle indeterminate. Because the Maltese legal system did not provide for a procedure capable of avoiding the risk of arbitrary detention pending deportation, it was unlawful: § 71 and 73. That system remains in place today, although it is currently subject to review. It has been the subject of trenchant criticism by reputable international organisations including, most recently, UNHCR in an email to the claimant's solicitors of 11 January 2013. I am required to have regard to the Strasbourg Court's decision. I accept it and approach these claimants cases on the footing that if they were to be detained under administrative powers on return to Malta, their detention would probably prove to be unlawful for the reasons given by the Strasbourg Court.
33. Despite that, this aspect of their claim must fail for two reasons. First, on the facts, there is no reason to believe that they will be detained administratively. Each was detained for a period, which they put at between 12 and 18 months, and then released. Each has been at liberty in Malta for a substantial period after release. There is no evidence that the Maltese authorities detain those returned under the Dublin II Regulation administratively. What there is is that some are detained with a view to prosecuting them for infringing Malta's criminal law because of the circumstances of their departure. Dr. Jean-Pierre Gauci, founder and director of "The People for Change Foundation" and a critic of Malta's reception conditions for asylum seekers, in paragraph 14 of his report of December 2012 states that Dublin returnees who have spent 12 or 18 months in detention and then released are not sent back to detention. On their own account of their time in Malta, this situation applies in the case of each claimant. In their report already referred to pro Asyl note that Dublin II returnees may be prosecuted for departing from Malta with fake documents and on conviction sentenced to up to six months imprisonment. If so their detention before trial and imprisonment after conviction would be lawful under Article 5.1(a) or (c) ECHR. There would be no risk, let alone a real risk, of unlawful detention. Further, even if there was a real risk of administrative detention for a few months, as Mr. Nathan faintly argued they might be, that would fall far short of the circumstances considered by the Strasbourg Court in Othman to amount to a flagrant denial of Article 5 rights.
34. I have approached the claims under Articles 3 and 5 on the footing that Strasbourg would treat the claimants' cases as "foreign" cases which might or might not be capable of giving rise, in principle, to a claim against the UK. Except in a case in which systematic default was established, I doubt that Strasbourg would in fact do so; and in consequence, I doubt that a domestic court is required to do so. If cases such as these are treated as "foreign" cases, it is inevitable that Strasbourg would be driven to make different findings in individual cases about identical conditions in a contracting state. The difference would not depend upon where the applicant resided when the application was made: MSS was in Greece, but his application against Belgium was based upon what the Belgian authorities should have known about conditions in Greece before he was removed there on 15 June 2009. It is theoretically possible to envisage findings that removal of a person to a contracting state did not put the removing state in breach of its obligations under Article 5, because detention was not flagrantly unlawful, but that his detention after arrival was unlawful – and vice versa, if the applicant failed to prove to the high standard required in a "domestic" case that his rights had been infringed. This would surely be unsatisfactory. Hence, the Strasbourg Court's observation in MSS that "the most normal course of action under the Convention system" is for the application to be made against, and only against, the receiving state, except in cases of systemic breakdown.
35. Mr. Nathan also submitted, for the purpose of determining the lawfulness of the clearly unfounded certificate, the claimants' cases must be taken at their highest: that despite inconsistencies and reliable conflicting evidence, I must accept what they say and, on the basis of that, decide that their claims would not be bound to fail before a judge of the First Tier Tribunal. He bases himself on the observation of the Court of Appeal in § 12 of EM,

"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.

36. For the reasons given, both the third country and clearly unfounded certificates were lawfully made and there is nothing to prevent the removal of any of the claimants to Malta. I indicated at the end of the hearing that I would grant permission to TK and GA to apply for judicial review and do so. However, for the reasons given, I dismiss all four claims.

An alternative scenario

37. At the outset of the hearing, I was invited by Mr. Payne and Mr. Nathan to make alternative findings on the footing that the claimants were, and would on return to Malta be, asylum seekers. I was initially inclined to accede to this request. During the course of the hearing, I changed my mind, for the following reasons

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.