QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
Mr Mohsen Pourali Tabrizagh
Mr Tahir Syed
Mr Saeed Ali
Mr Ali Omar Mohammed
Mr Edmond Karaj
|- and -
|Secretary of State for the Home Department
Stephen Knafler QC, Declan O'Callaghan (instructed by Duncan Lewis) for SYED
Stephen Knafler QC, Philip Nathan (instructed by Duncan Lewis) for ALI
Stephen Knafler QC, Declan O'Callaghan (instructed by Duncan Lewis) for MOHAMED
Stephen Knafler QC, Ms Keelin McCarthy (instructed by Duncan Lewis) for KARAJ
Greg Ó Ceallaigh (instructed by Turpin Miller) for AB
Alan Payne and Matthew Donmall (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 14 – 15 May 2014
Crown Copyright ©
Mrs Justice Elisabeth Laing:
(1) what is the test for deciding whether a claimant has an arguable article 3 claim as result of the Secretary of State's intention to return him to Italy; and
(2) whether the evidence on which the Claimants rely satisfies that test.
A. The facts
Mohsen Pourali Tabrizagh
Ali Omar Mohamed
The other evidence
The number of places available for asylum seekers and BIPs
The numbers of asylum seekers and BIPs seeking accommodation
The UNCHR reports
The Braunschweig Report
The SRC Report
i) the assertion that the ECtHR decided Hussein on credibility grounds (it is clear that it did not), and the indication that this approach meant that the ECtHR could find a violation of article 3 in a different case; Mr Knafler QC had to accept, as to the assertion, that the SRC "got it completely wrong";
ii) the authors' assumption, which pervades the report, that it goes without saying that BIPs are entitled to support as a matter of law, when they are not, except to a very limited extent, as I explain below; and
iii) the conclusion of the report, which I say more about below.
B. The legal framework
a) the approach of the ECtHR to the issues which arise in this case;
b) the Common European Asylum System ("the System"); and
c) domestic law and the approach of the domestic courts.
1. The approach of the European Court of Human Rights
(1) MSS v Belgium
(2) The 2013 admissibility decisions
2. The Common European Asylum System
i) Council Regulation (EC) No 343/2003 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 ("the Dublin Regulation").
ii) Council Directive 2004/83/EC on minimum standards for the qualification and status of third-country nationals as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive").
iii) Council Directive 2003/9/EC laying down minimum standards for the reception of asylum seekers ("the Reception Directive")
iv) Council Directive 2005/85/EC on minimum standards on procedures in member states for granting and withdrawing refugee status ("the Procedures Directive")
(1) The Dublin Regulation
(2) The Qualification Directive
(3) The Procedures Directive
(4) The Reception Directive
(5) The decision in NS
(6) EM (Eritrea)
(7) The relationship between the decisions of the CJEU, the Supreme Court and the ECtHR
3. Relevant domestic law
(1) Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("the 2004 Act)
"(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 human rights claim may be removed -
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place -
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, and
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise and in accordance with the Refugee Convention."
"The person may not bring an immigration appeal by virtue of section 92(4)(a) of the Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded."
i) When any person, court, or tribunal decides whether a person may be removed from the United Kingdom, a member state, such as Italy, is to be treated as a country from which a person will not be sent elsewhere in breach of his rights under the Refugee Convention or under the ECHR ("the deeming provision").
ii) The deeming provision and paragraph 5 prevent a person from appealing to the FTT on the grounds that he faces a real risk of being refouled by the receiving state in breach of his rights under the Refugee Convention or under the ECHR.
iii) If the Secretary of State certifies as "clearly unfounded" a claim by an applicant that his human rights will be breached within a member state, such as Italy, the applicant has no statutory right of appeal to the FTT against the Secretary of State's decision that there is no real risk of article 3 being breached.
iv) The Secretary of State will certify as "clearly unfounded" a claim alleging a real risk of breach of human rights in Italy, or in any other member state, unless she is satisfied that it is not clearly unfounded.
(2) The role of the Secretary of State in making, and of the court in reviewing, a certificate
(3) How does a claimant show that there is a real risk of a breach of article 3?
i) the argument, by those Claimants who are, or might be, asylum seekers on their return, that the evidential presumption is displaced, is bound to fail before the FTT; and
ii) the argument by those Claimants who are, or would on any view, very shortly after their return become, BIPs, or receive humanitarian protection, that they are at real risk of article 3 ill treatment is bound to fail before the FTT.
(a) asylum claimants: the evidential presumption
(b) beneficiaries of BIP
a) EM (Eritrea) requires BIPs and asylum claimants to be treated similarly;
b) the approach of the House of Lords to article 3 claims based on destitution is different from that of the ECtHR;
c) a breach or likely breach of Italy's obligations under the revised Reception Directive to provide integration facilities is a breach of article 3.
(i) Does EM (Eritrea) require BIPs and asylum claimants to be treated similarly?
(ii) Is the approach of the House of Lords to article 3 claims based on destitution different from that of the ECtHR?
(iii) is a potential breach of Italy's obligations to provide integration facilities a breach of article 3?
"In order to facilitate the integration of [BIPs] into society, Member States shall ensure access to integration programmes which they consider to be appropriate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status, or create pre-conditions which guarantee access to such programmes".
D. Should the certificates be quashed?
The Claimants's claims
Note 3 Per Lord Bingham at paragraph 14. Lord Hope, at paragraph 34, said, “The question [for the Secretary of State] is whether the allegation is so clearly without substance that the appeal is bound to fail”. [Back] Note 6 See paragraph 108 of Vilvarajah v the United Kingdom 14 EHRR 248, 289, also cited by Lord Hope at paragraph 51 ofYogathas. [Back]
Note 3 Per Lord Bingham at paragraph 14. Lord Hope, at paragraph 34, said, “The question [for the Secretary of State] is whether the allegation is so clearly without substance that the appeal is bound to fail”. [Back]
Note 6 See paragraph 108 of Vilvarajah v the United Kingdom 14 EHRR 248, 289, also cited by Lord Hope at paragraph 51 ofYogathas. [Back]