QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HON MRS JUSTICE THIRLWALL
| Musud Dudaev, Kamila Dudaev and Denil Dudaev
|- and -
|The Secretary of State for the Home Department
David Manknell (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 18 and 19 May 2015
Crown Copyright ©
Lord Justice Burnett :
The Background Facts
The Swedish Proceedings
"As a result of the lack of credibility that the Migration Board has found in the family's case, the Board is of the opinion that the information that has emerged concerning Masud's political activities is unlikely to be true."
"The Dudaev family have argued that if they are returned to Russia they risk being killed by the Russian or Chechen authorities, partly because of Masud Dudaev's political activities for the Chechen republic at the end of the 1990's and during the years 2003-2006 and partly because the family is related to Chechnya's first president, Dzochar Dudaev. To confirm this political activity Masud Dudaev has submitted a number of different certificates.
The Migration Court considers that the protection reasons that the Dudaev family have adduced and the documents that they have submitted are insufficient to show that there is a need for international protection in their case. The court bases this assessment on the following circumstances:
Masud Dudaev states that he was threatened on a total of four occasions during the years 2006-2011 in Turkey. The threats were made partly by unknown persons on the telephone and on one home visit to the family and partly by a representative for the Russian side during negotiations in Turkey. The threats, according to Masud Dudaev, were veiled. The court has therefore established that this was a matter of a few threats over a period of several years. Nor have the family ever been subjected to any treatment requiring protection on the part of the Russian or Chechen authorities. They have been able to live under their own names.
Despite the threatening picture which, according to the family, began as far back as 2006, the family never sought asylum in Turkey and nor did Masud Dudaev do so when he was in Sweden in September 2009. This in the court's opinion, means that there is reason to question how well-founded this fear really is.
According to the information in her Russian international passport, Masud Dudaev's youngest daughter … was born … in the Russian republic of Chechnya. According to Masud Dudaev, his sister still lives in Chechnya and has not been the subject of interest to the authorities there. Masud Dudaev has also stated that he has not been politically active since 2007. As shown in the investigation, Dana Dudaev has never been involved in political activity. The Russian passports that the family have submitted to the court show that these were issued during the years 2008, 2010 and 2011. The court therefore establishes against this background that the objective circumstances show that there is no reason to assume that the Dudaev family would be of interest to Russian authorities if they returned.
In summary, the Migration Court considers that there are no reasons to assume that there is an individual and real risk that the Dudaev family would be subjected to persecution or other treatment requiring protection if they returned to their homeland. They cannot therefore be granted residence permits as persons in need of protection. There is therefore no reason to grant them status declarations and travel documents."
The United Kingdom Applications
The Domestic Legal Regime
"33(1) Schedule 3 (which concerns the removal of persons claiming asylum to countries known to protect refugees and to respect human rights) shall have effect."
Removal of Asylum Seeker to Safe Country
Part 1 Introductory
1(1) In this Schedule—
"asylum claim" means a claim by a person that to remove him from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention,
"Convention rights" means the rights identified as Convention rights by section 1 of the Human Rights Act 1998 (c. 42) (whether or not in relation to a State that is a party to the Convention),
"human rights claim" means a claim by a person that to remove him from or require him to leave the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Convention) as being incompatible with his Convention rights,
"immigration appeal" means an appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (appeal against immigration decision), and
"the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.
(2) In this Schedule a reference to anything being done in accordance with the Refugee Convention is a reference to the thing being done in accordance with the principles of the Convention, whether or not by a signatory to it.
First List of Safe Countries (Refugee Convention and Human Rights (1))
2 This Part applies to—
[European Union Countries together with Norway and Iceland]
3(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed—
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.
4 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed—
(a) from the United Kingdom, and
(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.
5 (1) This paragraph applies where the Secretary of State certifies that—
(a) it is proposed to remove a person to a State to which this Part applies, and
(b) in the Secretary of State's opinion the person is not a national or citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on—
(a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention, or
(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.
(4) The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.
(5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b)."
Dublin II and the European Union Legislation
"1. Where the requested Member State accepts that it should take charge of the applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State.
2. The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain details of the time limit for carrying out the transfer … This decision may be subject to an appeal or review. Appeal or review concerning this decision shall not suspend the implementation of the transfer unless the courts or competent bodies so decide on a case by case basis if national legislation allows for this."
"53. It is precisely because of that principle of mutual confidence that the EU Legislature adopted Regulation 343/2003 in order to rationalise the treatment of applications for asylum and to avoid blockages in the system as a result of the obligation on state authorities to examine multiple applications by the same applicant, and in order to increase legal certainty with regard to the determination of the state responsible for examining the asylum application and thus avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests of both asylum seekers and the participating member states: see NS (Afghanistan) case, para 79.
55. It follows that the rules in accordance with which an asylum seeker's application will be examined will be broadly the same, irrespective of which member state is responsible …
57. ... article 3(2) of Regulation No 343/2003 (the sovereignty clause) and article 15(1) of that Regulation (the humanitarian clause) are designed to maintain the prerogatives of the member states in the exercise of the right to grant asylum… These are optional provisions which grant a wide discretionary power to member states. …
59. Lastly, one of the principal objectives of Regulation No 343/2003 is – as can be seen from recitals (3) and (4) in the Preamble thereto – the establishment of a clear and workable method of determining rapidly the member state responsible for the processing of an asylum application so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.
60. In the present case, the decision at issue is the decision of the member state in which Ms Abdullahi's asylum claim was lodged not to examine that claim and to transfer her to another member state. That second member state agreed to take charge of Ms Abdullahi on the basis of the criterion laid down in article 10(1) of Regulation No 343/2003, namely, as the member state of Ms Abdullahi's first entry into EU territory. In such a situation, in which the member state agrees to take charge of the applicant for asylum, and given the factors mentioned in paragraphs 52 and 53 above, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of the applicants for asylum in the latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter: see the NS (Afghanistan) case, paras 94 and 106 …"
"352. In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. On the contrary, it considers it established that … the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.
356. The respondent government, supported by the third-party intervening governments, lastly submitted that asylum seekers should lodge applications with the Court only against Greece, after having exhausted the domestic remedies in that country, if necessary requesting interim measures.
357. Whilst 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 to Greece clearly shows that applications lodged there at this point in time are illusory. … Considering the number of asylum applications pending in Greece, no conclusions can be drawn from the fact that some asylum seekers have brought cases before the Court against Greece. In this connection it also takes into account the very small number of r.39 requests for interim measures against Greece lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in other states."
(i) that a decision whether to examine an asylum claim under regulation 3(2) of the Dublin II Regulation was one which implemented European Union law for the purposes of article 51 of the Charter with the result that the decision was obliged to observe the fundamental rights in the Charter when making its decision (paras 68 and 69);
(ii) that although the Common European Asylum System was based upon an assumption that all participating states observed fundamental rights, European Union law precluded the application of an irrebuttable presumption that the receiving state observed fundamental rights of the European Union; therefore, article 4 of the Charter precluded a transfer in circumstances where systemic deficiencies in the receiving state showed that there were substantial grounds for believing that there was a real risk the person concerned would face treatment contrary to article 4 on return (paras 86, 94, 99 – 106);
(iii) that the rights set out in the Charter in this regard were no wider than those guaranteed by article 3 of the Convention (paras 114 and 115).
The specific question relating to the applicability of the Charter to the United Kingdom, already referred to, was answered in the positive.
"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 and 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 continued:
"99. It follows from all the foregoing considerations that … an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker's fundamental rights will be observed in the member state primarily responsible for his application is incompatible with the duty of the member states to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights."
"105. In the light of those factors, the answer to the questions referred is that European Union Law precludes the application of a conclusive presumption that the member state which article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union.
106. Article 4 of the Charter … must be interpreted as meaning that the member states, including the national courts, may not transfer an asylum seeker to the "member state responsible" … where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision."
"40. The need for a workable system to implement Dublin II is obvious. To allow asylum seekers the opportunity to move about various member states, applying successively in each of them for refugee status … could not be countenanced … the recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense investigation of avowed failings of the first state would lead to disarray.
41. It is entirely right, however, that the presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of the presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first indispensible requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker.
64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department  EWHC 2182 (Admin) at [42(i)] as "a significant evidential presumption" that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights will fall to be considered.
66 … In order to rebut the presumption a claimant will have to produce sufficient evidence to show that it would be unsafe for the court to rely on it. …
68. Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk if present is not to be halted in limine solely because it does not constitute systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return."
The Applicant's Post Arrival Evidence
"5. I can confirm that once the refusal of asylum has become final, it cannot normally be reopened within four years. There is a provision to re-open an asylum claim within four years where there has been a change of circumstances since the initial decision, but this provides very limited protection for the following reasons:
the making of an application to reopen an asylum claim and any appeals against refusal do not, unlike the initial asylum process, prevent the lawful removal of the applicant to their country of nationality. The Swedish courts can order the authorities not to remove such an applicant on a case-by-case basis, but such orders are very rarely made;
In my experience, the consideration given to applications to reopen an asylum claim are extremely cursory at every level.
By virtue of Chapter 12, paragraph 19 of the Aliens Law, unless a "reasonable explanation" is provided for the late submission of new facts or circumstances in a case, the application will be refused regardless of whether a deportation would result in a violation of Article 3 ECHR. What constitutes a reasonable explanation" is interpreted very narrowly by the Swedish authorities in practice.
The applicant has no right to legal assistance throughout this process. If, as is likely, such an applicant is detained; there would be very limited opportunities to consult even with a privately funded lawyer.
6. Although I am not familiar with the details of the family's case, if they have no new circumstances on which to rely, it is likely that the Swedish authorities would remove them immediately to Russia. It is unlikely that they would have sufficient time to seek to reopen their asylum claims before removal, and they would not be entitled to legal assistance. Even if they did make such an application, it would not automatically prevent their removal."
Mr. Sundquist's statement makes no reference to rule 39 interim measures.
"19. I have been asked what steps can be taken in the event that the family are returned to Sweden on 24 September 2013. The domestic proceedings in Sweden have been concluded. Without a change of circumstances the case cannot be reopened. Fresh claim applications do not give rise to effective non-suspensive remedies and they could be returned immediately to Russia.
20. Give that the Swedish authorities already have their passports (albeit obtained by bribery), I would expect that that the family will be immediately returned to Russia following their arrival at Arlanda airport. There are no domestic proceedings we could take to prevent that from happening.
21. Although of course there is the theoretical possibility of an application to the European Court, in practice this is likely to be an illusory remedy. If they are removed directly after arrival at Arlanda airport, there would be no chance of preventing their return to Russia.
22. Because there are no effective suspensive remedies in domestic Swedish law, there is nothing we can do to ensure that we have sufficient time to prepare such an application, and it is very likely that we would not have sufficient time. All of these practical impediments are well known, and have been the subject of criticism in the latest [ELENA Research]."
The Decision Letters
Discussion and Conclusions
The 2004 Act and European Union law
Sweden's compliance with its obligations
Mrs Justice Thirlwall