England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 April 2013

Mr C M G Ockelton:

1. This application for judicial review challenges the defendant's decision to remove the claimant to Cyprus under the provisions of Council Regulation (EC) 343/2003 ("Dublin II").
2. The claimant is a national of Syria. He was encountered at Gatwick airport with no documents on 13 April 2012. He claimed asylum. During his screening interview he said that he had previously claimed asylum in Cyprus, that his claim had been refused in 2009 and that he had returned to Syria. Asked to give more details, he said that he had returned to Syria on 11 August 2009 and stayed there until 27 December 2011, when he had gone to Turkey. He had then travelled to the United Kingdom, apparently using a false passport. A Eurodac check showed that he had claimed asylum in Cyprus on 1 February 2006. On 19 April 2012 the defendant formally requested the Cypriot authorities to accept responsibility for the consideration for the claimant's asylum application under article 16.1 of Dublin II. On 10 May 2012 the Cypriot authorities accepted responsibility. The defendant thereupon refused the claimant's claim to asylum in the United Kingdom and certified it on third country grounds pursuant to Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 as amended. Removal directions were set for 22 May 2012.
3. The claimant's solicitors then submitted representations arguing that the claimant's asylum claim should be considered in the United Kingdom. The basis for the submission was that the claimant had been refouled from Cyprus to Syria in 2009. The Secretary of State was not persuaded; the claimant's human rights claim was certified under paragraph 5(4) of Schedule 3 to the 2004 Act. That was on 21 May. The claimant then lodged an application for permission to apply for judicial review, which was refused on the papers by Underhill J. Removal directions were re-set for 29 May 2012, but cancelled on receipt of the claimant's renewed application for permission.
4. That application came for oral hearing before Mr Vincent Fraser QC, sitting as a deputy judge of this court on 11 October 2012, when he adjourned it to be re-listed on a subsequent date. It appears then to have come before Males J on 9 November 2012. I am told that he adjourned the matter by consent, but have no further details. It came before me on 10 April 2013.
5. Although Miss Lean's firm submission was that permission should be refused, it seems to me that there is considerable room for doubt about both the relevant facts and the law relating to this application.
6. So far as concerns the facts, although it appears to be undoubtedly the case that the Eurodac entry recording the claimant's claim in Cyprus in 2006 is correct, there is a very substantial difference between his own account and that of the Cypriot authorities about what has happened subsequently. He, as I have already indicated, claims that he was refouled to Syria, that is to say sent there in breach of the Refugee Convention. The Cypriot authorities say that his application was closed in April 2007 because he had not pursued it, and his claim was then refused. He did not submit any appeal against the refusal. He did not make his whereabouts known to the Cypriot authorities. Two years later he was traced, and being a person with no outstanding asylum claim, was removed to his country of nationality. According to the Cypriot authorities, he returned to Cyprus at some unknown date subsequently, and was in Cyprus on 28 December 2011, when he submitted an administrative appeal against his earlier refusal of asylum.
7. The letter setting out those details is dated 17 October 2012. It concludes with the following assertions:

"We detected also his departure dated 27/04/2012 going to Lebanon with the flight ME262."

8. Further details have subsequently been provided, in the form of a series of documents not all of which are readily legible. The only one to which I need refer at this point is what is said to be the record of his departure from Cyprus to Beirut in 2012. It is dated "12/04/2012", not 27 April.
9. The claimant's position, as set out in a witness statement dated 2 April 2013, is that he maintained contact with the Cypriot immigration authorities between 2006 and 2009, that he was ill-treated in Cyprus and returned to Syria during the currency of his asylum claim, that he has not subsequently been in Cyprus, and certainly neither made an administrative appeal there nor left on a plane to Beirut.
10. Clearly both accounts cannot be correct. The account deriving from the Cypriot authorities has the advantage of clear documentation, but doubts might be raised by the unambiguous assertion that the claimant left Cyprus on 27 April 2012 (when he was apparently in the United Kingdom); the later assertion that he left on 12 April 2013, is not impossible, but perhaps unlikely, bearing in mind his presentation at Gatwick on 13 April.
11. So far as concerns the law, Miss Lean reminds me that this is a challenge to certification under statutory provisions, and that it could succeed only on a Wednesbury basis, applied at the date the decisions in question were taken, in May 2012. That date is before the more detailed evidence from Cyprus, or the claimant's witness statement, became available. She points to the decision of Silber J in R (Chen) v SSHD [2008] EWHC 437 Admin, holding that once there has been a decision as to allocation under Dublin II, that decision is not subject to reconsideration in the light of subsequently emerging facts:

"[34] … [T]he application of the Dublin Regulations II is considered once and for all with the application when it is first lodged and at the time that it is lodged. Therefore it follows that by 13 November 2006 when the Secretary of State was first told of the alleged trip of the claimant to China, it was too late to do anything about the certification under the Dublin Regulations II which had been accepted by France. To reach a different conclusion would undermine the purpose of the Dublin Regulation II which is, as I have explained, to set out a framework which would lead to rapid conclusions."

12. On the other hand, as Miss Lean accepts, no such rigorous rule applies to a human rights claim, and the Secretary of State remains under an obligation not to remove the claimant or to treat him in any other way that would breach his human rights. In R (Al-Ali) v SSHD [2012] EWHC 3638 Admin, Holman J was dealing with a case where, as in the present case, the claimant claimed to have been removed from an EU country (the Netherlands) in breach of the Refugee Convention. The Netherlands accepted responsibility under Dublin II, but subsequently questions were raised about the circumstances of his removal from the Netherlands. Permission to apply for judicial review was refused in the High Court, but granted on appeal by Sullivan LJ, who said this:

"In the absence of any explanation from the authorities in the Netherlands as to why the applicant was ordered to leave the Netherlands notwithstanding his asylum claim, it is at least arguable that there is a serious risk that if returned to the Netherlands he will, once again, be ordered to leave."

13. Holman J dismissed the application because, by the time the matter came before him, there was an explanation from the authorities in the Netherlands, which he regarded as entirely sufficient for the purposes. But he observed that until that explanation was received, the judicial review claim was merited. Miss Physsas relies on the history of the litigation in that case to show how an individual's particular history in the country to which removal is proposed, may have a bearing on the legality and (at least) the timetable of the Secretary of State's decision to pursue removal. It may be that there is a conflict between what did happen, apparently with the approval both of Holman J and Sullivan LJ, in the latter case, and what Silber J said must happen in Chen.
14. There is a further, overarching difficulty of law. It is clear that the presumption that removal will take place in accordance with Dublin II is not irrebuttable. The basis for the Dublin II system is that each country of the European Union is presumed to be as able as any other country to determine an asylum application according to law, and observing all the Convention rights of the claimant. That presumption could be rebutted by showing, at some level, that the claimant's rights under the Refugee Convention and the European Convention on Human Rights would, in truth, not be observed in the country to which removal is proposed. The question is, what precisely is the requisite "level"?
15. Following success in a number of cases where claimants resisted removal to Greece, a number of claimants sought to resist removal to Italy. In a group of cases decided last year, the Court of Appeal rejected those challenges: EM (Eritrea) v SSHD [2012] EWCA Civ 1336. For present purposes, the important part of that decision may be summarised in the words of Jackson LJ, giving permission to appeal to the Court of Appeal in R (AB (Sudan)) v SSHD [2013] EWCA Civ 16:

"The legal position has, however, been materially changed by the decision of the Grand Chamber of the CJEU in NS v SSHD [2011] EUECJ C-411/10 and C-493/10, handed down on 21 December 2011. The effect of that decision is that Member States and national courts must operate the Dublin II Regulation unless there is evidence of "systemic deficiency" in the receiving state's arrangements for the reception of asylum seekers and refugees."

16. The claimants in EM have permission to appeal to the Supreme Court. It is expected that they will argue that, at least in some cases, it may be sufficient for an individual to show that the system will let him down, even if there is not a "systemic deficiency". Jackson LJ's judgement makes it clear, as I understand it, that those challenging removal to Italy should not have to run the risk of having to argue their case against the wrong criterion before the Supreme Court has given its judgement in EM. In the mean time, as I understand it, Dublin II removals to Italy are not being enforced.
17. So far as concerns Cyprus, the Secretary of State has the advantage of the decision of Sales J in R (Elayathamby) v SSHD [2011] EWHC 2182, in which the learned judge examined the materials relating to Cyprus, with the benefit of submissions from Miss Physsas. He decided that there was no reason why the claimant in that case should not be returned to Cyprus to have his asylum claim assessed there. Miss Physsas submits to me that there is now new material casting doubt on Sales J's conclusions. More pertinently, perhaps, for present purposes, Miss Physsas points to three recent decisions by Sir Richard Buxton, sitting as an additional judge of the Court of Appeal. In each of them he has stayed an application for permission to appeal to the Court of Appeal in a case challenging removal to Cyprus under Dublin II. Only one of them post-dates the grant of permission to appeal to the Supreme Court in EM: It is R (FJ (Iran)) v SSHD, C4/2012/3361. His reasons are stated as follows:

"Permission to appeal in EM Eritrea having been granted by the Supreme Court, it is not possible to proceed with this application until that appeal has been determined. Amongst the important issues in EM that lack an authoritative answer are whether the correct test is "systemic deficiency"; if yes, how is that phrase to be defined; and whether the test, in whatever terms, applies to all or some human rights issues as well as to issues of refoulement.

I therefore direct that this application be stayed to await the decision of the Supreme Court in EM.

For the avoidance of doubt removal of the applicant stayed until determination of this application and any subsequent appeal; or further order."

18. Neither party pointed me to any decision of the Court of Appeal taking a different view from that expressed by Sir Richard Buxton in the cases to which I was referred. Miss Lean did, however, tell me that the stay of the appellant's removal ordered in FJ (Iran) was being challenged by the Secretary of State and that an oral hearing of that challenge was expected.
19. Drawing these strands together, it appears to me that despite the decision of the Court of Appeal in EM (Eritrea), the Court of Appeal's position on Dublin II removals to Italy is that they should not be enforced until the outcome of the appeal to the Supreme Court is known. The concern clearly relates to the identification of what is the correct question to ask and answer in individual cases. Where there is substantiated material about the fate of individuals who have been returned, or may be returned, to Cyprus, the same difficulty arises, as the decisions of Sir Richard Buxton show.
20. Despite Miss Physsas's submissions, I am not persuaded that it is appropriate to say now that this application merits a grant of permission. I take the same view as expressed in FJ (Iran): it is not possible to proceed with this application until the outcome of EM (Eritrea) is known. I shall therefore stay this application until after the determination of the appeal to the Supreme Court in EM (Eritrea).
21. Given that the Secretary of State is challenging the stay on the claimant's removal in FJ (Iran), it does not appear to me to be right without more to decide now that the present claimant's removal should be stayed until the Supreme Court's decision. I shall therefore order that the claimant's removal be stayed in the first instance until the outcome of the challenge in the Court of Appeal to Sir Richard Buxton's order in FJ (Iran). Either party will have liberty to apply to vary either of these orders. The costs of the hearing before me today will be reserved.
22. I add one final observation. I know nothing, or next to nothing, about the facts of the cases that were the subject of Sir Richard Buxton's orders. So far as the present case is concerned, however, it is uncontested that the claimant has in the past been removed from Cyprus to Syria, and the Cypriot records appear on their face to be, in part, unreliable. I do not say that my decision would have been the same if those features had not been present. And, in particular, I should not be thought to express the view that no Dublin II removal to Cyprus should take place at present. There may well be claims that are doomed to failure whatever the Supreme Court decides in EM.