QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
(1) YUSEF SAAID MUHAMED HAMAD
(2) GADISA ARARSO
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Southey QC and Philip Nathan (instructed by Duncan Lewis) for Mr Ararso
Alan Payne (instructed by the Government Legal Department) for the Defendant
Hearing dates: 20 and 21 July 2015
Crown Copyright ©
The Honourable Mr Justice Kerr:
GA [Mr Ararso] 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".
… 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.
… On 31 January 2012 the Maltese authorities accepted that pursuant to Dublin II [Council Regulation (EC) 343/2003 of 18 February 2003] 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.
article 18 of the Charter [the Charter of Fundamental Rights of the European Union (2000/C364/01) ("the EU Charter")] grants rights in relation to refugee status and asylum which are fundamental and… in that sense, they are wider or deeper than those that are granted by the European Convention… particularly article 3 … .
The evidence of conditions in Malta
The Office of the Refugee Commissioner notes that all asylum claims are considered on their individual merit. All the asylum-seekers are given an opportunity for a personal interview during which they are given ample time to explain in detail the reasons for seeking asylum. The evidence presented by the asylum-seeker, including verbal as well as other documentary evidence, is examined thoroughly.
When assessing an asylum claim, the Office of the Refugee Commissioner starts by examining whether the applicant satisfies the criteria to be recognised as a refugee in terms of article 1(a) of the 1951 Geneva Convention. Failing this, the Office proceeds to examine whether the asylum seeker risks facing serious harm as defined in article 15 of the Council Directive 2005/85/EC, if s/he had to be returned to his/her home country.
The Office of the Refugee Commissioner has introduced a number of measures to ensure efficiency and to retain a high level of quality in the decision issued. In fact, it is to be noted that the recognition rate in Malta at the end of December 2012 stood at 86 per cent. The European average is 25 per cent. To this effect, Malta has the highest recognition rate in Europe.
Homelessness was repeatedly raised in a substantial number of sessions. This was linked to unsustainable departures from the protection offered by open centres (e.g. situations where refugees find themselves out of work following their entry into the community), termination of Open Centre Service Agreements and the policy of not authorising residents in open centres to asylum-seekers not reaching Malta by boat.
(1) It included at the start some statistics which were difficult to interpret. There was a debate before me about the proper approach to these and other statistics in the case, by reference to the decision of the Court of Appeal in R v. Secretary of State for the Home Department ex p. Gashi  INLR 276 (which I did not find of much assistance in the present context).
(2) To my mind, the statistics appear to indicate the following. Of the 2,203 asylum applicants in 2013 (of whom 16 were from Ethiopia and 108 from Libya), 3% were granted refugee status, while 79% were granted some sort of subsidiary or humanitarian protection. This latter form of protection could include the grant of leave to remain for a year. The proportion of Ethiopians granted refugee status from the 2013 applicants was higher than the norm, at 9 out of 16, though it is not clear why this is also recorded as "36%".
(3) In 2013 there were 2,224 asylum decisions at first instance. Of these, 53 resulted in the grant of refugee status and 1,664 in the grant of subsidiary protection, with a further 67 being granted humanitarian protection. On appeal, there were 154 decisions, of which one resulted in a grant of refugee status on appeal, and a further four resulted in grants of subsidiary protection.
(4) There was a surge of new arrivals from Libya towards the end of 2014. According to the AIDA report, the Refugee Commissioner has been granting, as a minimum, temporary humanitarian protection to all Libyan applicants and refugee status has also been granted in some cases. And "[t]he Immigration Police have been conducting regular reviews of the detention of all detained persons." (page 9 of the AIDA report).
(5) An unsuccessful asylum seeker has two weeks in which to appeal against a decision of the Refugee Commissioner. The appeal is to the RAB. An appeal has suspensive effect, such that an asylum seeker may not be removed from Malta until a final decision has been taken on the appeal (page 12 of the AIDA report).
(6) Appeals usually take the form of written submissions to the RAB, though oral hearings are sometimes held. The introduction of fresh evidence on appeal is restricted to new evidence that was previously unknown or could not have been produced earlier, at first instance. I was shown the relevant provision of Maltese law making provision to this effect.
(7) There was a debate between the parties as to whether the restriction on introduction of fresh evidence on appeal was confined to appeals where an oral hearing is held, or whether the provision also applies to appeals determined on the papers. The provision seems to me capable of either interpretation, and I do not attempt to decide this point of Maltese law (see page 16 of the AIDA report).
(8) In the month leading up to February 2015, there was a marked increase in the number of oral hearings held by the RAB on appeals, and a significant increase in the proportion of first instance decisions overturned on appeal. Hearings before the RAB are not held in public and decisions are communicated only to the applicant concerned, any known legal representative, the Refugee Commissioner, the Minister and UNHCR (pages 16-17 of the AIDA report).
(9) There is no free legal aid available to pursue a first instance decision on an asylum application. On appeal, however, free legal aid is available. The only free legal assistance to asylum seekers at the first instance stage is provided by a limited number of lawyers working with non- governmental organisations ("NGOs").
(10) On appeal, where free legal aid is available, representing lawyers are not allowed to copy information from their client's file but may manually copy its contents at the Refugee Commissioner's office. There are also legal provisions restricting access on the basis of national security or public order considerations. The appeal process is usually quite simple and is conducted in writing, but requires legal assistance to be effective (pages 19-20 of the AIDA report).
(11) The UNHCR has access under national legislation to asylum applicants including those in detention or in airport or port transit zones (page 30 of the AIDA report). The UNHCR and the Malta Red Cross visit detention centres weekly (page 52). NGOs do not have direct access but lawyers representing asylum seekers through those NGOs are allowed to visit their clients in detention (page 30).
(12) An asylum seeker whose claim has been rejected may submit a fresh application to the Refugee Commissioner. It is treated as a fresh claim if it includes "elements or findings that were not presented before". This requirement is strictly interpreted and would entail evidence of which the applicant was not aware and which could not reasonably have been submitted earlier (page 31 of the AIDA report).
(13) Where a subsequent application is not accepted as a fresh claim, the asylum seeker may appeal to the RAB in the same way as in the regular procedure, subject to a time limit of 15 days. This appears to refer to a right of appeal against a decision to reject a fresh claim on the ground that it does not include new elements that could not have been submitted earlier, though the position is not entirely clear.
(14) The start of the conflict in Syria led to a rise in the number of asylum applications from Syrians entering Malta and claiming protection, or overstaying in the case of those already in Malta when the conflict started. When the conflict intensified, the adequacy of "temporary humanitarian protection" for those Syrians claiming to be at risk of serious harm if they were returned to Syria, was questioned.
(15) In 2013 the RAB overturned first instance decisions limiting the protection to temporary humanitarian protection in such cases. Instead, "subsidiary protection" was granted and some Syrians were recognised as refugees (pages 36-37 of the AIDA report).
(16) At the end of 2014 there was a marked rise in the number of Libyan asylum seekers, both new arrivals and those who had been already living in Malta. All have received temporary humanitarian protection as a minimum, and some have been recognised as refugees (page 37 of the AIDA report).
(17) Asylum seekers in detention are provided with accommodation, food and clothing. Asylum seekers in OCAs are provided with accommodation and a daily food and transport allowance. Limited free medical help is available to those in detention, while those living in OCAs have difficulty in securing an adequate standard of living. Those returned under the "Dublin" system receive €2.91 per day. Those living in OCAs are required to contribute €8 per week towards the cost of their upkeep (pages 39-40 of the AIDA report).
(18) Living conditions in the OCAs varied from one to another, with overcrowding being a common problem. Residents are housed in containers with up to 24 people in one OCA per container, and up to eight in another (Hal-Far). There are corresponding hygiene and maintenance problems. Living conditions in the OCAs are, with a few exceptions, described as "extremely challenging", to the point where there are occasional infestations of rats (page 41 of the AIDA report). Asylum seekers who leave an OCA are not, in practice, permitted to return, and lose their daily subsistence allowance (page 42).
(1) In 2014, 824 asylum applicants in Malta arrived by regular means; 51% of them were Libyan nationals and 30% were Syrian nationals.
(2) The incidence of detention had diminished by the end of 2014, with around 30 individuals held in detention and 970 having passed through detention during that year, as compared with some 500 persons detained at the end of 2013 and some 1,900 having been through the system over the course of the year.
(3) In 2013, the European Court of Human Rights twice decided that asylum seekers' rights under the European Convention had been violated by Malta, in Aden Ahmed v. Malta (Application No. 55352/12) and Suso Musa v. Malta (Application No. 42337/12). The two judgments both related to Malta's detention policies in the period from 2009 to 2013.
(4) As at March 2015, about 760 asylum seekers, beneficiaries of international protection and migrants were living in the OCAs. This is a considerable reduction as compared with previous years.
(5) There is still a policy of mandatory detention in respect of undocumented migrants, i.e. those who arrive irregularly without travel documents, including those who seek asylum.
(6) Although there have been overcrowding problems in the OCAs in the past, there is now a sufficient amount of accommodation to house all those living in them.
(7) All asylum seekers in Malta, including those whose applications have been rejected, have access to the labour market in Malta, although the latter category have no legal right to work in Malta.
(8) Access to free healthcare for asylum seekers in Malta is in theory available but in practice difficult to obtain, due to cultural and language barriers.
(9) The term of office for members of the RAB is three years and members are eligible for reappointment. In practice, they often serve on the RAB for significantly longer than three years.
(10) Between 2004 and 2011, only six first instance decisions were overturned by the RAB (the source for this information is cited as paragraph 47 of the Hammarberg Report). In 2014, however, the success rate improved with 19 individuals, or around 11% of appellants, being granted international protection on appeal to the RAB.
(11) There have not been reports of refoulement from Malta in the twelve months to 2015, though an attempt was made by the Maltese government in 2013 to send a group of 45 migrants back to Libya and this was stopped by an interim measure from the European Court of Human Rights.
(12) In relation to Libyans, in 2014, 144 out of 453 decisions resulted in grant of refugee status and a further 178 were granted temporary humanitarian protection, while 64 obtained subsidiary protection. One application was rejected, 51 applications were abandoned and 13 were treated as inadmissible.
(13) In the first few months of 2015, 55 Libyans were recognised as refugees while 226 were granted subsidiary protection, one was granted temporary humanitarian protection and none has been rejected or granted provisional protection. The source for these statistics is a publication of the UNHCR.
(14) If the claimant Mr Hamad, who entered Malta lawfully, were returned to Malta it is unlikely that he would be prosecuted on his return and there is not a significant risk of refoulement in his case, provided he applies for asylum. In that event, he is likely to receive some form of protection from the Maltese authorities. He would have access to an OCA but his daily allowance would be only €2.91 which would not be adequate to guarantee an adequate living standard.
(15) In the opinion of Dr Gauci, while asylum seekers have access to the labour market and Mr Hamad would therefore be permitted to work in Malta, "rampant racial discrimination means that finding employment might be difficult".
(1) Mr Hamad would not be detained if returned to Malta and would have access to an OCA but would probably be sent to Hal-Far where he would face what would be "hard and challenging living conditions for anyone", with no ventilation or heating and limited outside light.
(2) As at March 2015, there were fewer people living in OCAs than previously; they were exceptionally empty due to fewer boats and refugees arriving in 2014 than previously.
(3) Asylum seekers have access to the labour market, provided they do not seek to work in the public sector. In practice they frequently work in construction and refuse collection or, if fortunate, as a cleaner. They encounter "widespread racism and xenophobia".
(4) In relation to appeals to the RAB, oral hearings are very rare and there are concerns about the independence and the impartiality of the panel members. An appeal can only be brought on a "procedural point of law" and not on the merits of the decision appealed against. The percentage of successful appeals is very low. A subsequent human rights based claim is not ruled out by an unsuccessful prior appeal.
(1) There has been a sharp drop in the number of asylum applications in Malta in the month to 9 July 2015. Applications reached a peak of between 700 and 800 at the end of June 2015, falling to zero in the first nine days of July.
(2) As at the end of June 2015, 18.5% of asylum decisions had resulted in the grant of refugee status.
(3) Libyan nationals were by far the most numerous group granted international protection as at the end of June 2015, comprising between 500 and 600 persons.
(4) The UNHCR estimates that under 30% of approximately 19,000 people who have arrived by boat in Malta from Libya since 2002, are still in Malta. The remainder have left Malta, many on their own initiative. About 2,800 beneficiaries of protection have relocated to the USA or other EU member states.
(5) The population living in OCAs has fallen from about 2,250 people in 2010 to about 600-700 as at 17 April 2015. The biggest drop in population was in the period 2013-2014, which saw a reduction from about 1,500 to about 750.
The Legal Framework
These four instruments [i.e. Dublin II and the three directives underpinning the CEAS] are the machinery by which, at an institutional level, the right to asylum guaranteed by article 18 of the European Charter of Fundamental Rights and freedoms ... is protected. The machinery works by imposing on member states a framework of expressed, related obligations in the areas covered by the four instruments. There is no dispute about the obligations which the [CEAS] imposes… .
The Geneva Convention
3. The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (Cmd 9171) ("the Geneva Convention"), entered into force on 22 April 1954. It was supplemented by the Protocol relating to the Status of Refugees of 31 January 1967 (Cmnd 3906) ("the 1967 Protocol"), which entered into force on 4 October 1967.
4. All the member states of the European Union are contracting parties to the Geneva Convention and to the 1967 Protocol, as are the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Principality of Liechtenstein. The European Union is not a contracting party to the Geneva Convention or to the 1967 Protocol, but article 78 FEU of the FEU Treaty and article 18 of the Charter of Fundamental Rights of the European Union ("the Charter") provide that the right of asylum is to be guaranteed with due respect for the Geneva Convention and the 1967 Protocol.
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 1 - Human dignity
Human dignity is inviolable. It must be respected and protected.
Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 6 - Right to liberty and security
Everyone has the right to liberty and security of person. …
Article 18 - Right to asylum
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.
Article 19 - Protection in the event of removal, expulsion or extradition
1. Collective expulsions are prohibited.
2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
Article 41 - Right to good administration
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
2. This right includes:
- the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
- the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
- the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.
4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
Article 47 - Right to an effective remedy and to a fair trial.
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
…the Court [in KRS v. the United Kingdom (application 32733/08)] considered that in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community Directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law and that it would comply with article 3 of the Convention. … .
80. In those circumstances, it must be assumed that the treatment of the asylum seekers in all member states complies with the requirements of the Charter, the Geneva Convention and the ECHR. It is not however inconceivable that that 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.
83. At issue here is the raison d'être 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.
84. In addition, it would not be compatible with the aims of [Dublin II] were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the member state primarily responsible. ….
86. …[I]f 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.
94. It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the "member state responsible" within the meaning of [Dublin II] 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 or article 4 of the Charter.
104. In those circumstances, the presumption underlying the relevant legislation, stated in para 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable.
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 [Dublin II] indicates as responsible observes the fundamental rights of the European Union.
106. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the member states, including the national courts, may not transfer an asylum seeker to the "member state responsible" within the meaning of [Dublin II] 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.
The critical test remains that articulated in Soering v United Kingdom 11 EHRR 439. The removal of a person from the member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.
61. Articles 26–29 of the Qualification Directive requires member states to provide refugees with equivalent access to that enjoyed by nationals of the member state in areas such as employment, education, social welfare and medical treatment. Article 31 requires that they be given equivalent rights as regards accommodation and article 33 calls for member states to provide appropriate integration programmes.
62. These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union. Under the EU Charter of Fundamental Rights, article 4 contains a human rights protection in equivalent language to article 3 of ECHR. The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law: see article 51 of the Charter. It is common case that the positive obligations under article 3 ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment: see MSS v. Belgium and Greece 53 EHRR 28, para 221. And in R (Limbuela) v Secretary of State for the Home Department  UKHL 66,  1 AC 396, the House of Lords held that article 3 could be engaged where asylum seekers were "by the deliberate action of the state, denied shelter, food or the most basic necessities of life": per Lord Bingham of Cornhill at para 7.
63. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. 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 falls to be addressed.
(i) When any person, court or Tribunal decides whether a person may be removed from the United Kingdom, a member state, such as Italy [in this case, Malta], 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 [here, Malta], 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 [Malta], or in any other member state unless she is satisfied that it is not clearly unfounded.
Where, as here, there is no disputed primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed or not then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that the court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational.
1. While the Maltese system for the reception, processing and treatment of asylum seekers has certain frailties and shortcomings, these fall measurably short of fundamental failings or near collapse, particularly in circumstances where the consistent trend is one of progressive improvement and fortification. It suffers from no systemic deficiency.
2. The transfer of a young male adult in good physical health, though suffering from mental health problems and asserting a risk of suicide, from the United Kingdom to Malta under the Dublin Regulation will not necessarily violate article 3 ECHR, articles 18 or 47 of the EU Charter of Fundamental Rights, article 33 of the Refugee Convention or the Qualification Directive.
In the light of the presented information on the general situation of asylum seeking persons in Malta, it has to be asserted that the presumption, this country would respect the basic rights of respective people in the Common European Asylum System in an appropriate manner, cannot be sustained. Although, on the basis of today's findings it cannot be said that the asserted deficiencies for asylum seekers in Malta are a general threat leading to inhumane or degrading treatment, the questions whether the person under concern belongs to a category of people who, in the case of the transfer to Malta, face the danger of a violation of their basic rights due to the prevailing deficiencies in the asylum system and of reception conditions has to be asked in all individual cases.
The Issues and the Contentions of the Parties
The agreed list of issues
[t]hat 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.
The parties' arguments
113. As follows from para 106 above, a member state would infringe article 4 of the Charter if it transferred an asylum seeker to the member state responsible within the meaning of [Dublin II] in the circumstances described in para 94 of the present judgment.
114. Articles 1, 18 and 47 of the Charter do not lead to a different answer than that given to the second to fourth questions…
115. Consequently, the answer to the fifth question… is that articles 1, 18 and 47 of the charter do not lead to a different answer than that given to the second to fourth questions… .
very slow to decide that the legislation of a democratically-elected legislature of a member state of the European Union is incompatible with the Convention. But I do not consider that our courts are powerless to assess the compatibility with the Convention of legislation enacted by a foreign legislature. There might be exceptional circumstances in which it would be appropriate for such an assessment to be made. But I am not persuaded that such circumstances exist here… .
inconsistent with the policy of the Dublin II Regulation if a non- responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France) …. .
Reasoning and Conclusions
The applications for judicial review
Mr Ararso's claim for damages for unlawful detention
AND UPON the Respondent agreeing, before taking any further decisions to detain and remove, to take into account that Patten and Aikens LJJ previously saw sufficient merit in the appeals to order stays of removal pending final determination of these applications… .
there appeared to be no exceptional circumstances in your client's case to vary his reporting to monthly. However this can be reviewed in the light of any further evidence submitted in support of this application.
It has been decided that you will remain in detention:
- Because there is reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release.
- To effect your removal from the United Kingdom.
(1) The starting point was that every imprisonment is prima facie unlawful, and is thus unlawful unless justified by the gaoler: R v Secretary of State for the Home Department ex parte Khawaja  AC 74 per Lord Scarman at page 110.
(2) The current policy guidance from the Secretary of State (chapter 55 of Enforcement Instructions Guidance) includes at paragraph 55.3 a "presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified."
(3) A departure from the executive's published policy could lead to the conclusion that there was an absence of lawful authority for an executive power of detention (Kambadzi  UKSC 23, per Lord Hope at paragraph 40).
(4) On the facts, there was no basis for the perceived risk of absconding, which was absent from the first detention review and was only invoked later, at the time when judicial review proceedings were expected.
(5) There is no history of reporting failures, and imminent removal became unrealistic, if not from 11 August 2014 when Mr Ararso was detained, at any rate from 29 August when the pre-action protocol letter was sent.
(6) Application of orthodox Hardial Singh principles leads to the same conclusion (see R v Governor of Durham prison ex p. Hardial Singh)  1 WLR 704 per Woolf J at 706 D-G, as restated in the judgment of Lord Dyson in R (Lumba) v the Home Secretary  UKSC 12,  1 AC 245).
(7) At the time of detention on 28 August 2014, the Secretary of State was well aware of Mr Ararso's intention to found a claim on article 18 of the EU Charter.
(8) Having expressly agreed to take into account that two Court of Appeal judges had "seen sufficient merit in the appeal to order stays of removal" on the basis of that argument, the Secretary of State failed to take that matter into account at all.
(9) All those considerations led inexorably to the conclusion that there were no justifiable grounds for Mr Ararso's detention and that it was unlawful.
(1) He referred me to the useful list of eleven material factors found in the judgment of Ms Bobbie Cheema QC (sitting as a deputy judge of the High Court), at paragraph 89, in Ganesharajah v Secretary of State for the Home Department  EWHC 3497 (QB).
(2) He submitted that the stance of the immigration authorities had been reasonable. It was not correct that there was no realistic prospect of removal. Had proceedings not been issued on 7 October 2014, Mr Ararso would have been removed from the United Kingdom the next day.
(3) Mr Ararso's immigration history included having lied about his circumstances in Malta, as found by Mr Justice Mitting, and the Secretary of State was reasonably entitled to consider that he posed an absconding risk once he became aware that steps were being take to return him to Malta.
(4) The threat of absconding was reinforced by threats of suicide if attempts were made to remove him. Those threats were made while he was in detention in September and October 2014.
(5) Those factors pointed in the direction of a likely attempt to frustrate his removal to Malta and provided a justification for the decision to detain him until it became obvious that removal could not be said to be imminent.
(6) The Secretary of State was not bound to assume that a challenge would be brought, even after the pre-action protocol letter had been written. It was not for the Secretary of State to second guess what Mr Ararso's instructions to his lawyers might ultimately be.
(7) As for the recital in the Court of Appeal's consent order of 23 June 2014, this indicated no more than that there might be merit in the argument based on article 18 of the EU Charter, but that argument had not been raised until 7 October 2014 and, even then, the fact that it had been raised did not mean that it would necessarily succeed.
(8) In the circumstances there was ample justification for the decision to detain Mr Ararso until it became apparent that expedition of the judicial review claim was not a realistic prospect, at which point Mr Ararso's detention was stopped and he was released.